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itaei
H
I
3 A'iA
(I-I-57
I
State Trials,
VOL. XEK.
State Trials.
VOL. XES.
NOTE TO THE READER
FRAGILE
THE PAPER IN THIS VOLUME IS BRIHI E
PLEASE HANDLE WITH CARE
COMPLETE COLLECTION
OF
AND
PROCEEDINGS FOR HIGH TREASON AND OTHER
CRIMES AND MISDEMEANORS
FBOM THE
EARLIEST PERlbD TO THE PRESENT TIME,
WITH J^OTES AJ^D OTHER ILLUST&ATIOKS
COMPILED BY
T. R HOWELL, Esq. F.R.S. F.S.A.
VOL. XIX.
A. P. 1753—1771.
LONDON:
PRim'ED BY T. C. HANSABD, FETERBOROUGH-OOiniT, FLEET-STREET i
FOR IX»NOMAN. HURST, REE8, ORHE, tc BROWN; J. RICHARDSON; BLACK,
PARBT, & CO.; £. JEFFERY ; J. HATCHARD; E. LLOYD; E. BVDD;
J. FAVL.DER; J. BOOKER; CRADOCK & JOY; R. H. EVANS; J.BOOTB;
AND T. C. HANSARD.
1813.
• • -••
• • •
• » • • •
* • ••
• • * •
i 'IH-'^^-yy
TABLE OF CONTENTS
TO
VOLUME XIX.
*ii* The new Articles are marked [}^.2
REIGN OP KING GEORGE THE SECOND.
Page
329. The Trial of JAMES STEWART, in Aucham in Duror of
AppiDy for di0 Murder of Coin Cmpbdl of Gleaore, Mq. Factor
for lus Mt^uty on tbe forfeited Estate of Ardahid, a. s>. 1752 ... I
990. The Trial of MAAY SQUIRES and SUSANNAH WELLS,
Widows, for an Assault and Felony committed on the Person of
Elizabeth Canning ; aft the Sessiims-Hoiise in the Old BaOey, a. n.
I7S9 «•••••«••#••«••••••••««•««•»•«*••••••••••••»•••••••'••••■•••••••••••• •••••• *o!»
SSL The Trials of JOHN GIBBONS, WILLIAM CLARKE, and
THOMAS O&EVILLB, fipr WiMbl aid Gorrapt PeiTiirj; at the
Sessions House in the Old Baiky, a. d. 175S ^ 275
SS2. The Trid of BUa^BETH CANNING, Sinnster, for Wilful and
Corrupt Peijary, sA Juslioe-Han in the Old Bailey, ▲• d. 1754' ... 269
S33. Hie Trid of TIMOTHT MURPHY, for Fdony and Forgery, a. d.
§3L Fk'oceedings against Dr. ARCHIBALD CAMERON, at the King's
Bench, May 17tli, on the BO of Attainder passed against him
19 Goo. iL ftr hfmg in the RdbeOlon 174tf, a. p» 175S 734
i0u rheJa^it§imkS»91Sta,XmStEaMt.IMMMS
CM, Tk TM 4f LAWBEXCE Eari FERREKS, ftr Ae Mader «r
A^n» I7W »*^ ■*« .,■■■■«—>— 866
REIGN OP KING GEOBGE THE THIRD.
Mt lWCM0riOHXWILKES,c«f.iHiaHiiaiCofpai;A.i>.lTeS 96S
MA» VvMttfimp mt Earn im m Aoam rfgtJbe \wapmmmwnil by DRY-
DEN LEACH, iB«»t JOHN MOKET, JAMES WATSON,
miA ROBERT BLACKMORE, dim of die Kii^s Meaei«eo»
A. 9. 1765«««*«««« «««^ 0.*... *• lOQS
ML The CMe of Sebote of Papets, being m Actkm of Tre^Mw by
JOHN ENTICK, Clerk, egaoMt NATHAN CARRINGTON
Md diree odier McMtngen in otdinary to die Kii^, a. d. 1165^. 1030
64& Procoedtofi to die Cate of JOHN WH^KES, eiq. on two Infonna-
tioMfiMrLibelf; a.i>. 1763— 1770 1075
MS. The Cite of BRASS CROSBY, esq. Lofd-Mqror of London, on a
Commitment bjr the Home of Commooa, a.d. 1771 1138
514« The Caae of General WarranU; JOHl^ WILKES, esq. against
ROBERT WOOD, esq. to an Acdon of Trespass, a.d. 1763,
[N.] 1154
H5. The Trial of WILLIAM Lord BYRON, Baron BYRON of Roch-
datop fbrlheBfmrderofWilliimChtfrmlb,ei(i. A.P.1765 1178
TABLE OF CONTENTS.
Page
516. The Trial of KATHARINE NAIRN and PATRICE 06ILVIE.
for the Crimes of Incest and Murder; before the High Court of
Justiciary in Scotland, A. D. 1765 ^ 12S5
517. Ihe Trial of FLORENCE HENSEY, M.D. for High Treason,
A. D. 1758 CN,] 1S42
Adoshsa to the Cases of Wilkes and Canning 138$, 1418
f ;■■;:..,.
A COMPLETE COLLECTION
OF:
STATE TRIALS,
529. The Trial of James Stewart,* in Aucharn in Duror of Appin,
for the Murder of Colin Campbell of Glenure, esq. Factor for
his Majesty on the forfeited Estate of Ardshiel ; before the
Circuit Court of Justiciary, held at Inverary in Scotland, on
Thursday the 21st, Friday the 22d, Saturday the 23d, and
Monday the 25th of September, by his Grace Archibald Duke
of Argyll, Lord Justice-General, and the Lords Elchies and
Kilkerran, Commissioners of Justiciary : 25 George II. a.d>
1752.
THE CRIMINAL LETTERS;
LiDCL OR Indictment.
George, by the grrace of God, king of
^t Britain, France and Irdaod, defender of
l^Aitb. To our lo?it8, -— — macers of our
c*«t of justiciary, messengers at arms, our
*^«iffi in that part, conjunctly and severally,
fptciilly coostitote, greeting. Forasmuch it
>■ humbly meant and complained to us, by our
^ trust? William Grant of Prettoograoge,
^ our adrocate, for our interest, and also by
^rbf it Janet Mackay, daughter to the lion.
^Bgli Mackay of Bighouse, esq. and relict of
^ deceased Colin Campbell of Glenure, for
hcnrif, and on behalf of Elizabeth and Lucy
^^•■pbells, her infant children, withconcourse
^ oar said adrocate, for our interest, upon
* See some obserfatioos on tbis>Case in Mr.
lliniett*s ** Treatise on various branches of the
CriBioal Law of Scotland," chap. 14. Of this
^ msoy other remarkable Cases before the
^vttetiry, no account was given by Mac Lau-
li^ to bis Collection, because reports of the
^ had been previously published. See his
^^cftoe, p. 4, cooteots, p. 1.5.
Aaealoua partisan of Stewart publishedjunder
IW title of «* a Supplement to the Trial of
^>ais Stewart," a warm and spirited arraign-
^ sf the proceedings upon this Trial. I
^ Made some eirtracts from bis publication,
if tMi 1 kmom not the date.
T0L.X1X.
James Stewart in Aucharn in Duror of Appin,
commonly known or reputed to be the natural
brother ot Charles Stewart of Ardshiel, attaint-
ed, and present prisoner in Fort- William ; and
upon Allan Stewart, commonly called Allan
Breck Stewart, son to Donald Stewart alias
Vic Ean Vic Allister, fomeiiroe in Invercbom-
rie in Rannoch ; and .since, or sometime after
the 18th day of April, 1746, a cadet or sol-
dier in the French king's service, or reputed
in this country to have been such.
That whereas, by the law of God, and the
laws of this and all other well-govenied realms,
murder is a most heinous crime, and severely
punishable, especially when the same is com-
mitted deliberately, and by lying in wait, and
from a malice conceived against the person so
murdered, on account of the*faithful discharge
of the duty of his office.
Yet true it is, and of verity, that the said
James Stewart and Allan Stewart, commonly
called Allan Breck Stewart^ complained upon,
are guilty, actors, or art and part of the said
heinous crime of murder, aggravated as afore-
said, in so far as the barons of our Court of Ex-
chequer in Scotland having, by commission
dated the 2dd day of February, 1748-9 vears,
appointed the said Colin Campbell of Glenure
to be factor upon the lands and estate of Ard-
shiel, forfeited to ua by the attainder of the said
Charles Stewart, and lying within the shire of
ArgvU, and in the neighbourhood of Glenure,
the bouse of the said Colin Campbell, and alao
B
5]
25 GEORGE II.
Trial of James Slcivartf
I*
appointed Li in factor on that part of ihe for-
feiied estate of Locliie), called Alamorc, lyinj;
in the shire of Inverness, and in the neighbour-
bowl of Fnrt-'\TilIiaDi, and upon the forfeited
estate of Allan Cameron of Callart, in the shire
of Inverness, adjoining; to the said lands of Ma-
more, and l>in^ lietwixt Furt-William and
Appin ; he, the said Colin, entered upon the
said office, and proceeding io the faithful exe-
cution thereof, did, among other things, at
Whitijiimday 1751, cause to be removetl the
said Jameti Stewart from Glcn<luror, a farm or
possession that had been held by him on the
said estate of Ardshiel : and in the month of
Ipril, in this present year 1752, the said Colin
Cam[»bell hati taken measures for causing to
be removed at the term of Whitsimdny , or 15th
day of May, now last bypa^t, certain other per-
sons who were tenants or posvessors of farms
upon the said lands or oslatc of Ardshiel ; which
proceeding was by the saiil Jumes Stewart, for
reasons known to himself, so much resentefl,
that, without any warrant or authority from
the tenants, or persons themselves, so intended
to be remoTCil, he the said James Stewart, io
the month of April last, came in person to
Edinburgh, and caused to be presenteil, in
name of the said tenants, to our lords of session,
a bill of .suspension of the said intended re-
moving, U|>ou divers atfected reasons, that were
either false or frivolous; and having procure<l
an order for answering the said bill, and a sist
of execution in tlic mean time, he returned into
the country, and caused the tenants intimate
the sist to the said Colin Campbell ; who there-
upon repaired to Edinburgh, where an answer
haviiifr been made to the said bill, the same
was refused by the lord ordinary, and the said
Colin Campbell returned to his own house at
Gleuure, where he might be in the way in at-
tend the duty of his office, and to cause the
said removing to be put in execution, and the
new tenants introducied to the lands on the said
15th day of May last. — And on account of the
said Colin l^ampbell's accepting of the said
office, and of the above-mentioned and other
his proceedings in the faithful discharge of the
duly thereof, the said James Stewart, and Allan
Breck Stewart, conceived a most groundless
and unjust rosentiuenf, malice, and enmity
against him, and at length entered into a wick-
ed conspiracy, barbarously to murder the said
Colin Campbell, and tu liereave him of his life
by the hands of the said Allan Dreok Stewart,
who had but then lately come back frt^m fo-
rtin^n parts into that country, and intended bOon
to^rougntn beyond sea; and, during his said
l:i>t abode in the country, had cl)i"t1y fre-
({Mtrntpd the house and citinpany of the said
J-iines Stewart. And, in prosecution uf this
w irked cou*ipiracy, upon Monday \\w 1 Itli day
of May last, on t!ie morning of ivhich day the
»aid ( olin Campbell left iiis own liousr of Cf te-
nure, tu gu to tort-^Villiam, in the country of
Utchaber, about the distance of 16 compiited
niik^t northwanl, in order totnuticttome binl-
neii rplaiing to bis Hictory on th« estate of Lo«
chicl, and from whence he was certainly ex-
pected to return to the lands of Ardshiel liefore
Friday in the same week, being the 15th day
of the said month, when certain tenants on the
lands of Ardshiel were to be removed, as above-
mentioned, and others introduced in their room ;
the said Allan Breck Stewart went from the
house of John Stewart of Fasnacloich, which
lies near to Glenure, to the house of the said
James Stewart at Aucharn, lying in the same
neiglibourhood, at the distance of about four
miles northward; and there the said James
Stewart was informcil, either by the said Allan
Breck Stewart, or by his own son Charles
Stewart, or by Siewart, daughter to the
said John Stewart of Fasnacloich, that Ihey
heard, or were informe<l, that the said Colin
Campbell of Glenure was to go to Lochuber
that day, and that he was to persist or proceed
in the intended removing of the tenants of Ard-
shiel (as the said James Stewart has, among
other things, acknowledged in his judicial de-
claration taken before the sherifl>substitute of
Inverness ;) and there, after receiving such ad-
vice, in the evening of the same da}', the said
Allan Breck Stewart laid aside his own clothes,
which he had brought with him, being a blue
coat, scarlet vest, and black breeches of sliag
or velvet, which were believed to have been
brought by him from France, an<l \iliich was a
remarkable or distinguishing dress in that part
of the country ; ami then and there the said
James Stewart furnished him, the said Allan
Breck Stewart, with a suit of hi$, the said
James's own clothes, being n dark coloured
short coat, with silver buttons, trowsers, and a
blue Iran net, in which the snid Allan dressed
himself that evening. — And also next morning
of Tuesday the twelAh of May last, when he
\ei\ the said James Stewart's house, where the
said Allan Ici^ behind hiui his own French
c!othes aforesaid, together with his hat, and
then set out, in order to lie in wait for the said
Colin Campliell on his way, when he should
return from Fort-William to' the lands of Ard-
shiel, which lands are bordiTe«l on the north-
east with the lands belonging to Alexander
Stewart of Ballachelish, whose house stands
near to the ferry of BulJacliflish, upon a nar-
row arm of the sea called fjochlevin, that sepa-
rates the country of Appin on the south, from
that of l^lamore, part of I^chiel's estate, on
the north Mde of it, and by vihich ferry of Bal-
lachelish it was kno\in or expected, that the
yaid Colin Campbell would pasK, in his return
from Fort- William ; and, to the said place of
Ballachfclish, the said Allan Breck Stewart di-
ri'ctly went from the Imuse of the said James
Ste««art at Aucharn, on this Tuesday the
twettlh of May last; and from thence, the
same day, accoiinpaniiil by James Stewart tlie
vounger of F.i«<n:icloidi^ went to Glenco's
house in Carnoch, about three miles farther
eastward, where the dowager lady of the
house is sister to the said Charies Stewart late
of AnlBhiel,and to her the said James Stewart
is natural brother; and, fruin thence, lie went
»1
Jot Murder,
ibt nme day to the bouse of Callart, which
nmetiiDe belonged to Allan Cameron of Cal-
hrt, itUioteU, and was still inbabiteil by Helen
Stevart his %v(dow, and also sister to the said
Charles Stewart of Ardsbiel, and to the said
isBMS Stewart, at which house he lodj^ed all
tkat Tuesday night ; — and next day, beings
Wcdanday, the thirteenth of Mav last, the
Md iUsQ Breck Stewart came back, after
eJSng again at Camoch, to the house of
iiexuider Stewart of Ballachelish, near the
ftny aforesaid, where he remained the night
ttloaing ; — and, upon Thursday the four-
taesth of the said month of May last, when it
■igrfat be certainly expected, that the said Colin
Canfbell would return from Fort- William to
ibe hods of Ardshiel, and country of Appin, by
tbe said ferry of Ballachelish, the said Allan
Brcck Stewart waited about the said house, till
about twelve of the clock that day ; and then,
voder pretenee of going a-6shiog, walked up
akm^ a bum or rirulet near to the said bouse
to ti^ higher grounds, from whence he had a
prospect of the high road leading from Fort-
IFilliam to the lands of Ardshiel, and access by
a short passage into the wood of Lettermore,
danding upon tbe lands of Ardshiel, and ad-
joiaiag to the said road on the south side, about
I mile distant from the house and ferry of Bal-
hcbeiisb ; and, having posted himself in the
aid wood, near to the high road, by which
tke said Colin Campbell was to pass, at a con-
veoieot station for his wicked purpose, where
be bad brought, or caused to be brouffht and
t^aoed, one or two guns, or muskets, loaded,
with which he continued some time concealed
is tlie wood ; and, at length, about five or six
o'ckxk in the afternoon of the said fourteenth
4y uf May last, the said Colin Campbell hav-
ing paMcd tbe ferry of Ballachelish, and been
ttoveyed by the said Alexander Stewart of
Ballachelish from tbe ferry to the entrance of
tke wood of Lettermore, as he continued bis
jamey |iassiog on horseback along, or through
tkt said wood, accompanied by Donald Ken-
itily, a sherilTs officer of Art^yll-shire, who
was on foot, and bad LOt some space before
bin, the road lieing bad for horses, and by
Mango Campbell, writer in Edinburgh, a young
■ui, wlio was then riding a little way before
kiin; and behind him, at'some distance, was
Juho Madu^nzie, servant to the said Colin, and
tlio 00 borseback.
AimI then and there the said Allan Breck
Smart fired upon the said Coliu Campbell
ffOD behind his back, and shot him throuj^h
tke body with two halls, of which wounds the
iiid Colin Camnbell died upon the spot, in less
tbao an hour atter.
Whereupon the said Allan Breck Stewart
ihcopdfcd, and, from that time, appeared no
ksKcr openly in the country ; but, during the
ai|^ Mbwing, or about three o'clock in the
■oraing of Friday the fifteenth day of May
l>il, bs ctme to Carnoch, the bouse of John
^■*^'*islti of Gleoco abovementioned, where
W kiicksd at a window when the family were
A. D. 1752. [6
all in bed ; and the said John Macdonald of
Glenco, and Isobel Stewart his ste|>- mother,
got up, and went to the door to the said
Allan, who then told them, that the said Colin
Campbell had been shot detd the evening pre-
ceding, in the wood of Lettermore, and that he,
the said Allan, was leaving the country, and
going the Moor-road, and was come to take
leave of them, the said lady, and Olenco her
son-in-law, which he immediately did, and
went away, without entering tbe house, though
be was invited by the lady to come in, and take
some refreshment there.
That, in tbe mean time, the said James
Stewart, complained upon, remained at his owi^
house at Aucbaru, firom which, on the morning
of Thursday, the 14th of May last, he sent a
letter by John Maccol his servant, to Charles
Stewart, writer in Auchintour, in which, inter
alia^ he writes, " As I have no time to write to
William, let him send down imi^ediately 8/.
sterling, to pay four milk cows 1 bought for bis
use at Ardshiel. '* And as he, the said James,
hath judicially declared, (when examined at
Fort-William, on the 2nd of June last, in pre-
sence of George Douglas, sheriff- substitute of
Inverness-shire) he did not see the said Allan
Breck Stewart after the murder; hut upon notioe
being brought to the said James Stewart, com-
plained on, at his own house at Aucharn, im-
mediately after it happened, on the said Thurs-
day evening, by the said John Mackenzie, ser-
vant to the said now deceased Colin Campbell,
who, having \e\\ the said Mungo Campfa«ll to
attend the corpse where it lay, rode away to get
help or assislance fi»r transporting the same to.
some fit house or place; the said James
Stewart, complained upon, appeareil noways
surpriseil or concerned at the news of the mur-
der ; and neither he, nor any of his family,
went to look after the corpse, or to assist in the
carrying it, as others of the neighbourhooil did.
And, u|>on the morning, or about noon of the
day following the murder, being Friday the
15th of May last, the said James Stewart,
complained upon, sent Alexander Stewart, tra-
velling packman in Appin, to William Stewart
merchant in Maryburgli, with directions to get
from the said William 5/. sterling, or 5 gui-
neas ; and then told the said packman, that bis
friend Allan Breck Stewart was going to leave
the country ; and that it was incumbent on
him, the said James, to supply him with
money; whereupon, the said packman, that
same day, repaired to Fort-William, ami deli-
vered his said message from the said James
Stewart, to the said WiUiani Stewait, who
immediately caused his wife bring the packman
three guineas, — with which the packman re-
turned the next day, being Saturday, the lOlh
of May last, back to the said James Stewart's
house at Aucharn ; and, upon his arrival there,
found the said James Stewart prisoner, in the
custody of a party of soldiers ; and the said
packman being allowed to converse privately
with the said James Stewart auti his wife ; and
having informed him, that he had only recei\ t<t
TJ
26 G£OilG£ 11.
Trial qfJam^B Stewarl,
[»
^ IjrtiinMs from Wilttam Steivart at Marrburgli,
tlio said James i^ewart took out of his nurse 2
guineas, which he gave to bb wife, ueslrinff
her to g^ife the same to the packman ; to go
with these, and the three guineas he already
hud, atid^also with Allan Breck Htcwart's
clothes, to him, the said Allan : and, acrord-
insfly, on the evening of that same Saturday,
iifter the fsuid James Stewart had been calried
off prisoner to Fort-Vl^illiam, his wife brought
the said Allan Breck Stewart's clothes above-
incntioned, to the packman, and defiFered the
same tied up in a bundle to him, cootalninff a
pair of red breeches besides the Mack breeehes
above-mentioned, that wer6 the prO|)erty of
the said Allati himself; and at the same
tirrle, delivered to the packman the two gui*
neas nbofc-mentioned, which she had re-
ceive: d from her tiaid husband for that purpose,
and directed the packman to go with tbeclothes
and the five guineas, and deliver the same to
the said Allan Breck Stewart, whom he would
find or hear of at the house of John Maccol,
bouman, having the charge of milk cows upon
a farm or shealing belonging to Dougal Stewart
of Appin, at a remote or solitary place called
Koalisnacoan ; and the said packman, afler
g'etting- his sujpper at Aucham, set out on this
errand acconnngly that same night: — ^That,
in the mean time, in the aflernoon of the said
Saturday, the 16th of May last, the said Allan
Breck Stewart was seen by the said John
Maccol, Appin's bouman, in the heu^h of Cor-
rynakiegh, a |nirt of the farm of Koalisnacoan ;
whereas the bouman was cutting fire-wood,
he heard a whistle, and, Itiokiug about, observed
a roan, at a considcruble distance, beckon to
him, whom, unon his going up to him, he found
to be the said Allan Breck Stewart, who saluted
him, by asking him how he did? And the
bouman returned the salute, and told the said
Allan, he was afraid it was no good action occa-
sioned liis being in such a solitary place ; upon
which the said Allan asked |iim, what he meant
by that ? And the bouman answered, that he
would, without doubt, besuspcctcdof Glenure's
mnnler, who, he heard, was shot in the wood
of Lettormore ; and that there were two men
seen go from the place where the action was
committed ; to which the said Allan replied,
'riiat, if he was ri;>htly informed, there was
hut one person conccrne<l in the murder ; and
talking i'ui^lier of the matter, said, he did not
doubt the family of Ardshiel would be suspected
of the murder ; and that he believed James
Stewart anti his son would betaken up, in con-
sequence of their difference with Glenure about
the lands ; but that their being taken up, would
not be of any consequence to them, as there
would be no proof, unless their own tongues
betrayed them : and, upon the bouman's say-
ing, fhat he wished he, the said Allan, would
leave his neighbourhood, Allan tod him be
could not, till Tic was supplied with money and
victdals ; and insisted with the boaman, that
he should go to the Strath 6f Daror (where the
said James Stewart's ho«M of Aiidm lict) ftr
money, and to the lady Glenco for a peck of
meal ; both which the boaman appearing to
decline, the said Allan added, that he, the bou-
riian, must go to Fort-William with a letter,
(which the said Allan tlien wrote with a wood-
pigeon's quill be had gathered artiong the
trees,) to William Stewart, merchant io Mary-
bargb, who, he said, would glVe him money
tipon reeeipt of the letter; and the boumao
having also refused to comply with this propo-
sition, giving fbr bis excuse, tbAt he heanl tbat
all that went to Fort-William at that lime
were taken into custody, the said Allan furtlier
told him, that unless he should be supplied,
from some other quarter, before next day, that
he, the bouman must go to Fort- William, not-
withstanding these difficulties, and that he, Allan,
was surprised there was no money sent him,
though It was promised to be sent him to tbat
place. That very early in the morning of Sun-
day, the irth of May last, the said John Maccol,
bouman, went out of his house, to look after
some cattle that he apprehended were amongst
his corns, and then ooserved, coming towards
him from the westward, a man, whom, at a
distance, he took to be Allan Breck Stewart ;
but, aiM>n his nearer approach, found him to be
the said Alexander Stewart, packman, who,
upon bis c6roing up to him, afler the ordinary
salutations, ask«l tne bouman, if he had seen
Allan Breck Stewart ? which the bouman hav-
ing denied, the said packman told him, that he
had money and clothes for the said Allan, which
he (Allan) had try sled, (or agreed with some
other person) to receive at that place from any
one who should be sent af\rr him with it ; and
then the bouman owned he had seen him, the
said Allan, and that be was then in the heugh
of Corrynakeigh, and told the packman, that if
he went to an eminence, which he pointed out
to him, and whistled, that the said Allan Breck
would probably appear to him ; but this the
packmaq declined, complaining tbat he was so
ntigued with travelling the whole night, that
he would not go, having been lately upon his
own business at Fort- William, and having been
obliged to go there again on the said James
Stewart's errand above-mentioned; and there-
fore desired the said bouman to deliver the five
guineas, which he then gave him, to the said
Allan Breck Stewart, together with a bundle of
clothes, which he, the packman, had left at the
root of a fir-tree then in their view, which he
pointed out to the said bouuinn, who promised
to deliver both to the said Allan as desired ;
whereupon the packman, being much fatigued,
went to sleep m the bouman's house ; and in
the evening of the same Sunday, the seven-
teenth of May last, af\er the said John Mac-
col, bouman to Appin, was ^one to bed, he Was
awaked by the said Allan Brock Stewart his
knocking at the window of his the said boa-
man's house, whereby the board or shutter of
his said window fell in ; whereupon the said
bouman got up from his bed, and went out,
when be round the said Allan Breck Stewart
rt&cdataomediitafieefjrom his home, who,
»1
JxJfT MHtder,
r«R III
togrtkc
INfi
•fit^fi^*! Ill
Ibnol a!l, fold liiok, he itooil m ^reai ueeij of
ifitik ; Hpnr t» :^ii -•r, *-■ ntno iveiil into
^^unn Of* diih
I hern hoiledf
k in his hnni],
;^ :, nil tliey come
u iHifn or rivufet, not
hiiu&e ; &n(U nt this
I'l'ik asked the lion-
iiiv body come lo tliat
tar birn? i^hich the
the Rffirmattve, and
1 i^tljia the i]ve guineas he
\ lexander Stewart, ihe jwck-
' Mian Breck Stewart
> ivithout \m ffend*
<i i oil VVUhaui,aD(J^n-
G hail been brought Tor
'"•'»iti delivered to him
<?'ii»enlioned, iliat
>»(ewftrt the pack-
1 \\\H fir- tree, and then
d and tntiTated the bou-
iOMieviliitit tti (hut pUcenejit iDnrning' cart) ,
b# fsa^lil dcUrerto htm the dark cob^ureil
gnwunlfii with silver buttons, and a iiair of
btch the taid hXHn then wore, aud
tlpttfi UifDi and ivhich he told the bournan
\\%« pti*|»eriy of the said James Stewart in
Is it ' 'i it the bouman might re-
liiil il' -^e ctolbes to the vdid
Of if> .^*^.^.l .1 8tew»it hiB Hite; and
i bouman promised to meet the said
^ ABm ci»«^» mrwiMtig^ a^ lie desired; and ac>
B omlittfl irtDti repaired next diorDing'
^^kifdrr » the place appointed, at the
^^Ki , Tur the mreiiii^f where he
^^Bl ' 'br s;ttd Allan himself, but
B^OBd&^j ' coloureil coal and
H IfWUBin ^«iher with hit own
■ taffMi or duli, kik nhicb be had brong-ht the
B ■itkaagft tvater to the »iid Allan; und^ in one
I tfili* pock#tft of the Hiiid short coat, the said
^MOiAti fMiod a timal) powder- hoi'n« of a flat
^ Siikr. tritli aome carviii|^ upon the horn, and
B Mi w»x Ofi the itiviile thereof, for ineudin;
^U|UrM«T 4f-* *'-tMi place the <iai<l
^^^hIi BlUtmh w fVom that country
pVM«lli« mi. -, ae proposed, by g'oinji a-
#IM miiioltiQif ind deK&rt!*^ where there wa;
■i #»illi«|^4imi3ie for the space of about
i^laiii eofiijmtcd mi(e» eastward, to the coun-
try cmDed f!antinch, rn the north-west corner uf
miNlir r of the said Allan
Bmli^r iidfi or relatione of
L^liTC \ jufiun^;.t whutu he kqit himaelf ooti*
nilM fivr a few day«, nnd was there seeit with
4» " 1 I pair of reil
Ir I w from that
CNiDirv , auti utlj ih»i im i ji. tan i> seen or heard
if jfitnii lingi}um, that the cuuipbiincni bare
tttBaMe ti» kani. And m ;» let t*^r wrote hj
iIbmI JaoiM 8iewart, ^inci" hi' w.ts laktn into
cviadf Ml at-cimiit of tht* said inm-Kr h**nr-
hg mm St Fmt- IVitharn the IDth y
IwlUrcMed, To Mr. Juhti ^ ul%
' li libfl aiguct \ whrreio iht said Jamea
ding a
AlTlID
A. D. 1752. [10
[rr4)fte«i gfmt deteatation of the murder, and
great desire that the said Allan Breck Htewaii
tnig^ht be apprehended, and, for that purpoce^ \
describes the i»erson and dresa of theiiaid Allan |
he, infer aha, My 9, that he, the said Ailail|
wore a pair of red breeches.
From all which, and other facts and ctrcum*
ataooes that will be proved agninKi the said
persons complained uftoii, and particularly the
tbreateoin^s of death and destruction,* whioti
the said James Stewart, and the satd Allan i
Bt^ck Htewart, above complained upon, havg I
been henrd to otter ag^ainst the stiid Colin |
Campbell of G tenure, now bfreated of his lifai,
by the horrid murder and assassination nfore- ]
Hatd, it will be made evitlent and pvoved, thatj
the said James Stewart, and Albn Breck
Stewart, compliiined ujKin, and each of them,
are i^uilty, actors, or art and part of the said
horrid murder.
And as a part of this proof, there will be pro>
duced certain documents in writing, and other]
particulars enumerated and contained in an in-
ventory or list lliereof, signed by the com-
plainers, or either of them, copies of whicb
list or inventory will be delivered to, or ,
nerved upon, the persons complaineil upon, at |
the lime of eicecutin^ this libel; and the said
tvritten documents, and other particulars them- ]
selves, will, before trial, be lodged in the hands
«f the clerk to the circuit court of justiciary,
befcire which the persons complained upon aro *
to be tried, that they may see the same.
At least, at the time and place aforesaid, the |
ttaid Colin Campbell of Otenure was barba-
rouUy murdered, and the said J^imes Stewart, '
j and Allan Breck Stewart, above complained
uprm, are t^uilty, actors, or art and part of the
said murder.
All which, or part thereof, being found '
* The author of the * Supplement* objedati^
the admission of proofs of particular threaten*
in^ upon this general and ambiguous allega- '
tinn, which did not afford the panoel sufficient
iuformatiflu to enable him to be prepared, either ,
to exculpate himself from tlie charge^ or to
elide it by a contrary proof.
As to the allegation of circumstances and pre*
sumptions, Air. Ilume (Coram. Trial for Crimea^
c. 7, »ol. 1, p. 383,) lays it down that,
»' Tlie rule of setting forth time and place in «
a libel has relation to the main act only, or
consummation of the crime, and not to the iskt*
cumstances and presumptions which may be
given in evidence of the pannePs guilt, or to
inter that he is art and uart of the charge*
With regard to the detail or these ; for instance
in a case of murder, the preceding enmity and
threats, the procuring of the weapons, the flight
of the paimel, hii» tiohavjour when tuken, the
blood found on his cloihes, and the hke; if the
libel set I hem forth at all, it is matter of pare
favour on the jirnstKJu tor's part ; he cannot ^
therefore be challenged, 4br ftlHnf 10 fdate
ill em with all the aeeonipa«taieflti WtMa lilt
ptmnd tnigitt flonieiimea deaire.**
11] 25 GEORGE U.
proTeu by tbe verdict of aD assize, before ODr
lords justice-geoeral, justiee-clerjc, and com*
mifsionert of justiciary, in a circuit court of
justiciarv, to be bolden by them, or any one or
more of Iheir Dumber, iritbin the burgh of'
Inrerary, upon the 2l8t day of Seplerober
next to come, N. 8. the said James Stewart,
and Allan Brack Stewart, complained upon,
both, or one or other of them, who shall be ho
oonficted, ought to be punished with the painE
of law, to the terror of others to commit the
like execrable crime in time coming. Oiir
will is; &c. — Ex deliberatione Dominorum
Commissionariorum Justiciarii.
Robert LErra.
List of the PerMons Nama and Detignation$
that are to pau upon the AMtise of the said
James Stewart^ and the said Allan Breck
Stewart,*
Argyll- SHIRE.
Donald Campbell of Airds.
Dugald Stewart of Appin.
1. Colin Campbell of Carnuhin.
John Maclean of Lochbuie.
Donald Campbell, younger, of Scammadale,
Duncan Campbell in Oban.
* Previously to the death of Campbell of
Glenure, there had been a long and bitter feud
between tbe Campbell and the Stewart clans.
It is to be noticed, that of the assizers from
whom were to be selected the jury for trial
of this Stewart, 25 were Campbells.
The Justice general, who in deviation from
the ordmary practice presided, was the chi^f
of the Campbells, and of the 6fleen jurors
selected by the Court, eleven were of hii
grace's clan.
To speak generally and briefl v as to the for-
mation of the assize or jury, the course ap-
pears to be this: Out of a general roll of the per-
sons liable to be called on to serve as assizers,
the clerk of the court makes up a list of 45, ni
whom the presiding judj^e selects 15 to pass on
the trial of the paunel ; these are presented to
thepannel, who is asked if he have any objcc^
tion why tliey, or any of them, should not psK^
on his assize. ** As to which," says Mr. Hume,
** our custom allows him not that freedom >
which the prisoner has in Encfland, of settinc^
aside so many*' [a certain number] " of the ju-
rymen by a peremptory challenge, or withoiii
asst)2rning any cauie of dislike, but obliges him
to specify with respect to any one whom he
challengres, some lawful and just exception,
why the man should not be trusted on such an
occasion.*' Fifteen to whom the pannel shall
not have successfully objected constitute the
assize. See Hume's Commentaries, Trial for
Crimes, ell, pp. 89. 99. 93. 106.
TIm « Suppkuieot to tbe Trial of James Stew-
tft' nflDtioiii, that " the LondoQ Evenmg
FMoTDw. 5, [1758] took Mtica of thia tri^
Trial qfjamei SteXLort,
[W
Duncan Campbell at Aross.
ArcbibakI Campbell of Knookbuie.
3. Dugald MacdOgal of Gallanach.
Donald Cam|>bell, bailie of Lochinnel.
James Fisher of Duren.
3. Alexander Duncanson of Kills.
Archibald Campbell of Ormsarv.
John Ricbanison, merchant at inverary .
4. Duncan Campbell of South- Hall.
5. Hector Macniel of Ardmeaniah.
Archibald Campbell of Clachanseil.
6. James Campbell, late bailie of inverary.
7. James Campbell of Rascheilly.
8. James Campbell of Rudale.
Angus Campbell of Ardlarich.
9. CoUin Gillespie of Bailliemoir.
10. Colin Campbell of Skipnish.
11. Duncan Campbell of Glendaraul.
Hugh Campbell of Lix.
Alexander Campbell of Ballochiel.
Colin Campbell of Kildalvin.
12. Colin Campbell of Ederlin.
13. Niel Campbell of Duntroon.
Archibald Campbell of Jura.
Duncan Maclauchlan of Croich.
John Campbell, younger of Ottir.
14. Archibald Campbell of Daill, in Craignisb.
15. Niel Campbell oFDunstaOiuish.
BuTE-SHIRE.
Archibald Davie in Glenrossie, in Arran.
John Brown in Glenshervig.
Donald Brown there.
Alexander Fullertoun in Brodick.
Thomas Macninch in Clachlands.
Duncan Macmaster in Lamblash.
William Hunter in Letter.
Andrew Macbryde in Monimore.
John Macbryde in Achincairn.
James Stewart in Mid-Klskidale.
Alexander Stewart in South -Kiskidale.
Cii. Areskine.
Alex. Fraser.
Hew Dalrymple.
N. B. The execution of the criminal letters,
against James Stewart personally, was upon
tbe 21st day of August, 1752 ; and the execu-
tions against Allan Breck Stewart, at Aucharn,
was upon the 24th day of the said month of
August, and at tbe Market- cross of Inverary,
the 25ib day of the said month of August.
in the following words : * We are informed by a
private letter from Argyleshire; that the ancient
animosity between the Stewarts and Campbells
la likely to revive, on the score of hanging
James Stewart at Hallachelish, on account of
the murder of Colin Campbell of Glenure.
The circumstances of trying Jumes Stow&rt at
Inverar^Ti the seat of the'd of A , is
what his friends Hx upon to convince the
world that he was hastily and unjustly con*
demned."'
13]
far Murder.
A. D. 1752.
[II
Ci?BiA Itinsris JovnciARn, 8. D. N. R^is,
leota apud harg'uiii de InTerarii, yicesinio
pnmodie Meosis Septembris, Anno Do-
tnioi millesimo septiDgenlesimoquinquage-
simofeGundo, N. S. per nobilem et preepo-
teatem Principem Archibaldum Ducein
de Arg}U, Dominum Justiciarium Gene-
nlrm, et Patricium Grant de Elchies,
ansi^rerum, e^Dominam Jacobum Fergu-
son de Kilkerran, Doroinos Comroissiona-
nos Justiciarii dieti S. D. N. Re^s.
Curia legitioQ^ affirroata.
His 51ajesty's Advocate naoTed, That the <
Criounal Letters at bis instance, tor bis majes-
ty's interest, and also at the instance of Janet
Mackaj, daogfater'to the honourable Huf^h
Mackay of Biglionse, esq. and relict of the de-
ceased iDolin Carapbell of Glenure, for herself,
and on b«baU' of Elizabeth and Lticy Gamp-
bells, her infant children, with concourse of his
said majeftty's ail?ocate, for his majesty's in-
terest, s^aioj^ James Stewart in Aucharu in
Ilnror ofAppin, commonly known or reputed
to be the natural brother of Charles Stewart,
late of Ardsbiel, attainted; and Allan Stew-
art, commonly called Allan Breck Stewart, son
to Donald Stewart, alias Vic Ban Vic Allister,
sometime in Inverchomrie in Rannoch, and
ttoce, or some time a(\er the 18th day of April,
1746, a cadet or soldier in the French king's
ferrice, or reputed in this country to have been
such, might be called. And the same being
•ccordin^y done, and the above Allan Stewart,
commonly' called Allan Breck Stewart, lieing
oft and divere times called publicly by the
macer of court, and thrice called at the outer
door cf the court- bouse, to bare compeared
lad anderlyeo the law for the crime of mnrder
oofomitted by him upon the said deceased
Coha Campbell of Glenure, in manner at len^h
•Motioned m the said criminal letters, he harmg
Wes lawfully cited for that effect, hut not com-
paring,— tbe lord justice general, and lords
etouaiisiooers of justiciary, decern and adjudge
Alho Stewart, commonly called Allan Breck
fteirart, son to Donald Stewart, alias Vic Ean
Vie Allister, sometime in Inverchomrie in
lUsaocb, and since, or sometime after the
18tb day of April, 1746, a cadet or soklier in
tW French king's service, or reputed in this
CiNtry to have been such, to be an outlaw
isifagicive from his majesty's laws ; and or-
te lam to be put to the horn, and all his
SMfeable goods and gear to be escheat and
ishrongbt to his mi»jesty's use, fur his not com-
pstnng thb day and place, to underly the law
Isr the crime ot murder committed by him upon
t^ deeeased Colin Campbell of Glenure, as is
Me foll^ mentionetl in the criminal letters
niicd against him ihereanent, at the instance of
WiUiam Grant of IVestoiigrange, esq. his ma-
jeaj'sadvoeate, for his majesty's interest, and
^ at tbeiostance of Janet JVlackay, daughter
tetbebeooarable Hugh Mackay of Bighouse,
aaad raliec of the said deceased Colin Camp'
of GlHUVti for henelfi and on behalf of
Elizabeth and Lucy Campbells, her infant
children, with concourse of his nuijesty's ad-
vocate, for his majesty's interest; the said
Allan Stewart, cpmmonly called Allan Breck
Stewart, having been lawfully cited for that
effect, oft times called, and not compearing.
Ahqyll, I. P. D.
Inlran^
James Stewart indicted and accused at the
insUnce of bis m^esty'i advocate, for his ma-
jesty's interest, and also at the instance of Janet
Mackay, daughter to the houourable Hugh
Mackay of Bighouse, esq. and relict of the
said deceased Colin Campbell of Glenure, for
herself, and on behalf of Elizabeth and Lucy
Campbells, her infant children, with concourse
of his majesty's advocate, for his majesty's
interest, as guilty, actor, or art and part of the
crime of murder, committed in the manner
mentionefl in the Criminal Letters raised there*-
anent against him, and Allan Stewart, com-
monly called Allan Breck Stewurt, son to Do-
nald Stewart, alias Vic Ean Vic Allister, some-
time in Inverchomrie in Rannoch, and since,
or sometime after the 18th day of April, 1746,
a cadet or soldier in the French king's serf ioe,
or reputed in this country to have l^o sacb.
Procurators for the Prosecutors.
The right bon. William Grant of Pr«Bton*
gprange. esq. his Majesty's Advocate.
Mr. James ErskinCy advocate, sheriff- depute
of Perthshire.
Mr. John Campbell younger, of Levenside,
advocate.
Mr. Robert Campbell of Asnich, advocate.
Simon Frazer, esq. advocate.
Procurators for the PanneL
Mr. George Brozon of Colstoun, advocate,
sheriff depute of the shire of Forfar.
Mr. Thomas Millar^ advocate, sheriff-depute
of the stewartry of Kirkcudbright.
Mr. Walter Stewart younger, of Stewart-
hall, advocate.
Mr. Robert Mcicira/ojA, advocate.
His Majesty's Advocate moved, that the Cri-
minal Letters against the pannel, and the be-
fore-name<l Allan Breck Stewart, might be
read. And the same was accordingly done.
Lord Justice General, James Stewart, you
have heard the criminal letters against you
read. What have you to say to them ?
James Stewart. Sly lords, I nm not guilty
of the crime of which I am accused, and 1 re-
fer to my lawyers to make my defence.
Mr. Walter Stcrcart for the pannel.
My Lord Justice General ; — I appear as
counsel for this prisoner, James Stewart, who
now stands at your lordship's bar, charged as
being accessary to one of the foulest and most
barbarous murdera that has occurred in any
country ; the murder not only of an innocent
gentleman, but, as will be proved, the pannel^s
IS] 23 GEORGE IL
own intinaU friend; and that without the
soialleil provocation, save what |[reatly eo-
hancea his ffuili, Tix. Glenure'a being in the
liiithtiil diacbargfe of his duty in an office en-
trusted to him by the poUic He is charged
with causing Allan Breck Stewart lie in Wait
for this unhappy gentleman, and take him off
by a base and inhuman assassination, i am
sensible, my lord, that the paonel, accused of a
murder attended with so many aggraTatine
circumstances, most appear berore your lord-
ship, his jury and tlie world, in a f ery unfa-
vourable Tiew. A certain indignation naturally
arises in every humane breast against one sus-
pected of so horrid a crime ; and this must
net be a little increased by the malicious stories
and insinuations industriously spread, which
the panael, from -bis close copnnement, has
had no opportunity of contradicting, fiut now,
as he has put himself for his trial upon God
and his country, bv pleading not guilty, until
ihat country finds him guilty the presumption
is for innocepce. This he has a title to de-
mand. All 1 shall ask, however, is, that as I
kaow his judges, so I hope his jury, and all
wlio now hear me, will lay aside any prejudice
against him, and will form no opinion, until the
oiroumstances of the libel, the dtfeneea which
I am now to offer against it, and the proof of
both, be attentively considered. For myself,
my lord, 1 must say (and I believe I may say
the same for all the gentlemen on the same
side with me), did I, aner the strictest inquiry,
suspect the panncl to be accessary to this
murder, it would be the last actwn in my life
to stand up in his defence. But, my lordy we
have gone through this libel with the greatest
attention, and have taken a view of the several
facts, which, after a precognition of above a
thousand witnesses, are set forth to support the
charge against the pannel ; we have heard
from the pannePs own mouth his defences
against this charge, which he avers he can
prove ; we have heard, from the unprejudiced,
the generai character he bears in the world,
and, from the whole, cannot help concluding,
that he is not guilty. We look upon ourselves
as standing up for innocence, when defending
this pannel. It is therefore our duty to defend
him with that warmth which innocence claims
as its due.
In the entry of this trial, my lord, I cannot
help complaining of most intolerable liardshi|>s,
which this pannel has undergone since Nay
last, when he was first incarcerated. My lord
advocate's humanity, his tenderness to pannels,
I can, from my own little ex|»erience in trials,
subscribe to. The unjustifiable steps 1 am
now to complain of, I must therefore lay to
the charge of the private prosecutors. 1 dare
say my h>rd advocate as little kuew of them,
as he will now, when be hears, approve of
them. The pannel, since tbe month of May
last, has been kept in the ckwest contiuemcni.
^4>r tke first six weeks, oo mortal was allowed
aopeilofaim; afUr €hat^ iadnrd, fyr some short
tme, epWniitpiMW mm giMB t« Imi wife, and one
9
Trial qf James Stewart f
[16
or two more ; but any who could be thought
proper persons to prepare defences for his trial,
were carefully denied access to him. And
again, for a considerable time before his trial,
he was dose confined, and all admittance re-
fused. When his counsiel came to this place,
and wanted to see him, we were told that none
were to be admitted without a warrant from
the duke of Argyll ; and a petition was ac-
tually drawn, to be presented to your grace,
when a message came allowing us access.
His sons and his servants too have suffered the
same close imprisonment. And all tlus not
only contrary to humanity, but directly in tbe
Ace of the act of parliament 1701, which dis-
cbarges close imprisonment after eight davs,
under the severest penalties. By the precau-
tion of this private prosecutor too, the bar has
been In a manner shut up against this pannel;
all the old experienced counsel, though not
brought to maintain th2 charge against him,
have been retained from giving him their as*
sistance ; otherways, in all probi&lity , I had not
now been employed to opoi his defence. The
pannel's house and his repositories have been
three several times searcbM, and papers carried
off by near relations of the prosecutors, attend-
ed by a military force, ana without any war-
rant. His wife and his sons, who by the laws
of God and man cannot be called as witnesses
against him, have beeu examined upon oath \
some of them five different times, to catch at
any discerdaace, had there been any, in their
declarations; and these very declaraiions are
now proposed to be brouglit in proof against
the pannel, while the declarants themselves
are alive, and ought, by the fundamental laws
of this kingdom, to be exatnined in presence
of tbe pannel and jury. These are hardships,
my lord, which, thanks be to God ! meet with
no encouragement in this now a free country.
The time was, indeed, when tlie feeble kiw
was unable to protect the iunoooot, when the
rules of justice were broke to pieces by the
ruffian bands of power ; then our unhappy
/country groaned under tlie intolerable yoke of
arbitrary power ; then was scarce the form of
a trial ; tlie best, tbe greatest of our country,
even an Argyll,* fell a sacrifice to the will of
tyranny. But now, my lords, tbe days which
our fathers wished to see, and did not see, we
have the happiness to enjoy. A fair trial,
which the noblest could not obtain, the meanest
are now entitled to, under the protection of
laws, guarded by a government ever watchful
for the good of'^its subjects, under which the
keenness of private prosecutors will meet with
no countenance or encooragement. The pan-
nel, enjoying the privileges of every free-bom
Briton, is now to stand trial before the judges
and jury of his country ; and as his judges
will shew tbe greatest impartiality, he ezp^la
the same from the gentlemen of the jury.
They will judge of the proof brought ifefoni
* See tbe Cmo of Ibe earl of Avgyll, vol
a, p. 8i3.
IT] ^^^HV^ J^^ Murder.
ikm* UviBff in ilietr ey« iKe exim^le of Al-
'kU Go<r. hv VI hosi? linlv tmine tliev have
-: or
pnoB^ [ It erery man is jud^j^ed
iccoriui^ w>. Tbey will consider,
lJBAt«ilu«> M^ lo iiu^wer loGod|So ibev hafe
Uiioiwrr la Uie wcirli), who will make a narrow
lAil i]iip%rtaU ftcrminy inlu th^ir veiilict. At
tk maatt lime 1 cnutiol Uelp say log, that,
indaUUic hmrd«l ; 1 has suflcred,
mpc«lbom« ptr <ane« that he
it 10 IbIiM I»> ^ ' <ie coun-
9 «flk biniAeli', v^ parti ca-
br bmvMgeof i . u.^i .n^ character
m llie worklt vHoii l^'^^^' wUiki proof
llfMarwj loiu ' '-f^ }v\ar\c ^ crime.
Iiiftriur tlialy'^ re Tutly
OlirfKflBd tbadei ifcred rbr
te fftttiMl} I vriU beg ie47e to lay before iLe
aa aeootttii of the facls, which haire
nm i» ibb profiecutiuo, as they really
I uut as we have ^ol Ihem itom the
» ovm mouth, at a time when it wiM
tatere&i In hide the truth from Uf.
Thm pumrit my brd« wa«i in possessjuit of a
htm m Ibe «»tat« of Ardaliiel culled Glenduror,
mi nwm Uckamao ui another callt'd Letter*
mmm, mUet he had subset for about 70/. Scots
» ycur, wbvT) f :<— ^ - ■■ appointed factor on
tbecsiklftor Muary 1749. That
C4**j."-i.c'J ...-- Hi4jndxhip whicii he
cnl^rtained Inr the panael ia a rery
mArittiT Hi- i'.ivi> him 1 li<' ftianag'e*
Uir \, (lower
km ma^ii . i aiise the
Un^ m% he ahould think proper^ and took
|tflHy fraoi the paimel bta bdl tor th':^ rent of
lAs CMiila* al which it had been surveyed by
tlvlttr«|i« of frxdivqui^r, ieavitit^ him to apply
liiK oiMTphm m ibt ii«« nf Anlahierit children.
Hn* agf^rencni irill be instructed by dis-
«baign Mid l«Un tindf r Glrnure*a owi» haad.
Iknnetiflw Mvri! Whitsutiday, 1761, Glenure
tbt panit«i Hk yield the faroi of
«f Itidi be th«D ppfsessrni, to Mt^
■T ilvlatfiolin - --^^icuLir fripod of
bit, ^bo nflerrd an ii'< nt. Thi«i the
tptiAedtttely l^..,^.,...* vtilh, %vithout
a wartiint^, rind tnok tho fiirm of
i^v livc*» from Mr. Camp-
tni(inutd to iiplill the
iiij . of him u'jirf^menl
lire
■ -'I in
>rm ut Wliit-
L^aiiist several
of ArdshieL The
idt ht didexpostu-
it ihii^ teUing him, he
ri iliem out^ aince they
'''>''■■ * - / ihaD any
oatlii 10
u»ii peratnted
the nnnnel,
.^ti^lif al the de-
imoCthfi
iQidtt oul 1 ihoji meiDarial
A.D. 1752. [18
of the fnct, and presented it to one ofthebaroiia
of exchequer^ who disapprnTed greatly uf
Gleoure^s procedure ; but could du nothing to-
wards putting a slop to the removing-, as a
quorum of the barons was uot to be had until
ihe next exchequer term. But be kept the
(iieinorial, promising to represent tlie case to
the whole barons ; and ad^leil) that he h:id no
doubt, but they would (^ve an order to the
factor to continue the teuunta in their poisca-
iiions. The pannel upon thi$ advised with
counsel, how the teuanis might be kepi ia )>09*
aesaion until the exchequer term ; and, by their
advice, applied for a suspension of the remov-
ing to the court of session : And a bill of su««
jiensioQ bemu accoidingiy presented, a sist wi
obtained, and the bill ordered to he answered |^
vhich sist was intimated to Glenure, upon tli
panners returning Into lUk country ; and h%
not kuowing the forms, having carried witli
Kim the principal bill of suspension, and
Glenure immediately givinir in aoswera^ Iba
same were advised without the bill, and it was
refused. This scheme of a siit^pension having
failed, and Glenure persisting in bin resolution
of ejecting the tenants npon the term day al
whicii they were warned to remove, the pjinneJ»
upon a second applicniion from the tenaati,
wrote to Alexander i:»teivarl> notary public, to
come, upon the 16th of diay.that thty might
protest) and take an instrument ai^ainiit Oieiuire,
if he proceeded to fjectinn; and when Alex-
ander .Stewart excused himself, tb« t>anoeL
sent a letter « by express^ on the 14th of >Iayi
10 Cbartea ijlewart, notary in Auchiniourj to
come on the ssimo errand, and, in a postscript^
bid hirn tell WtUiam Stewart to send down Hi,
sterling, to pay four milk cows ivbich he had
bought for his use at Ardshiel, and which the
tenants had refused to deliver until they got
the price, ttiough William Stewart bad wrote
for them. This pofilscript is laid hold of hy
the prosecutors, as a circumstance to tix llua
murder upon the (Mmnei. But this, my lord,
I atn not surprised at ; other letters of bis
ahare the same fate, though, if possible, len
criminal than this one: By what eonjumtioD^
or what mighty magic tbey cau be made ao, I
own 1 cannot cot\jecture.
The panne), in further prosecution of ib^
plan of takinio: a protest, on Thursday the 14tb»
bad engaged James Stewart younger of F
cloich, and John Stewart younger of Bel
dielish, to be present on tlie l^tlif and witness
his protest. But, on the Thursday ovenhig,
the pannel received the melancholy arcounta
Mf GIrnurt'i being murdered in the wood of
l^ttermore. These are the facts which gave
rise to that inveterate malice, which the hbel
says induced the pannel to conspire the deattt
of Glenure. The words are: '^ And, on ac-
count uf tliH said Colin Campbeirs accenting
tbefuihi office, and of the above-mentioned and
other his proceedings la the faithful ditMiharge
u( the duly thereof, the nnid James cooceivetl
resentment,^* ^c. tlow umutt thia eouclusioii
if» I da Uttmblv tiibi&it to ynur ImilAhipi.
C
I
W]
95 GEORGE II.
Triel'tfjamet Steuart,
[90
After Glennre wat made factor, year lordship
•€€0, they continued io the greatest friendship :
you see the pannel managring the estate of
Ardshiel under Glenure, removing from his
possession of Glenduror, at Glen are's desire,
without putting him to the trouble of a wsm-
ing, and going and residing under Mr. Camp-
bell of Aii'ds. He had no possession in Ard-
shiel estate, as Lettermore was subset; his
management of the estate was not taken from
bim, and he was still allowed to remit part of
the rents 4o Ardshiel's family. He has no
eonnexion, by blood or otherways, with the
tenants warned to remove; there is not so
much as one of them of bis name. The
estate was annexed for ever to tlie crown, and
was ia. a few months to fall intoihe hands of
commissioners, appointed by his majestv, wb^
would probably restore the tenants, as they of-
fered more rent than those put in by Glenure.
Can any mortal believe, that the |>annel, be-
canse Glenure was to execute a removing
against these tenants, should enter into so exe-
crable a design, as to assassinate that gentle-
man by the hands of Allan Breck, on the 14tb,
when we see bim pursuing quite another
acheme, sending for a notary and witnesses to
take a protest against bim on the 15th? In all
cases of murte, 1 do humbly apprehend, it is
of necessity, that there should be malice afore-
thought, which Is the essence ot; and consti-
tutes the crime ; and all passions, particularly
one of so extraordinary a nature as this malice,
must have had some cause. I do submit to
your lordtbi|>s, if there b the smallest apfiear-
ance of that malice, or any thing like a cause
assigned for it. But, even taking the story as
it stands in the libel, it is a tale that can gain
credit with no mortal. What earthly pur-
pose could the pannel serve by such a desperate
piece of villainy? Would the murder of
Glenure prevent, the removal of the tenants ?
Would not the murder of Glenure deprive him
of the liberty which tliat scotleman had given
bim to uplift the rents? Would it not put ft out
of his power to help bis brother ArdshiePs fa-
mily ? The pannel is allowed to be • judtcioua
man, prudent in his actions beyond most men
of his rank in the world. Can it be believed he
would do a thing so directly contrary to his in-
terest ? Suppose him capable of the crime, we
roost suppose him the greatest fool, as well an
the greatest monster that ever disgraced hu-
manity. But, is this his character? No, my
lord, a»he is a sensible man, an all who know
bim will say, he is a humane, peaceable, good-
natured man, looked upon as a father where
be liFes ; straiM(er8 were happy to get their
children under bis care, as in net he is tutor and
curator at this very time to several orphans,
who .have not the smallest relation to him.
Here, my lord, I will for a little leave the
naanel, anjf pve an acoooat of Allan Breck
Stewart, wbo b diarged as the committer of
this Burdtr, having entered into a wid^ed coo-
rcywhb the paonel for that purpose. Wbe-
he was the attual laiirdflnr or Mt, the
pannel knows not ; neither is tt my business to
say. 1 shall only point out what oonnexiona
were betwixt the nannel and Allan Breck, leav*
ing it to your lordship, and the jury, to judge
if the circumstances of these connexions, as I
shall now open them, or even as they are laid
in the libel, are sufficient to tix upon the pannel
his being a conspirator in this execrable plot.
At the same time, there is no question but the
prosecutora must fix the actual murder upon
Allan Breck, otherwise the charge against the
pannel entirely flies off.
This Allan Breck Stewart, my lord, was the
son of one Donald Stewart, a particular friend,
and distant) relation of the pannel's. He died
while his children were innnts, and, upon his
death- bed, committed them to the care of his
friend, naming him tutor and curator to them.
The pannel faithfully executed this- trust, took
care of the children's education, and managed
their effects to the best advantage. Allan turn-
ing extravagant, when he grew up to man's
estate, and having spent what was left him by
his father, inlisted io his majesty's servicot
without clearing accounts with the pannel, who
used to supply liim with money, and pay little
debts for him, even after he became a soldier,
though he knew he had already given him
more tlian bis patrimony. This the pannel
thought he owed to the memory of his deceased
friend. Breck continued in his majesty's ser-
vice until the battle of Preston, where being
taken prisoner by the rebels he inlisted with
them, continued with them during the libellion,
and afterwards made his escape into France,
and inlisted in the French service, where he
still continues. Since he first went over, he
has been in use, now and then, of coming back
to Scotland, and staying a few months with his
relations; be commonly landed first at Edin-
burgh, and lodged in the house of one Hugh
Stewart There he seldom went out but in the
ni^ht, and more than once narrowly escaped
bemg apprehended as a deserter. IV hen he
came up to Rannoch or Appin among his rela*
tions, be used to stroll about without any
settM residence ; and where-ef er he came, he
generally threw oflfhis French clothes, as they
were remarkable and improper for that hilly
country, and borrowed from any acquaintance,
where -ever he happened to m at the time.
Among others, he used to visit at the pannel's
house, though he came sddomer there than to
other places in the neighbourhood, as the
pannel used to take a good deal of freedom in
olamin^ his conduct and extravagance. About
the beginning of Mareh last became over from
France, was at the bouses of Balachallan
and Annat, and went from thence to Glen-
bdcky's house, where he continued until the
end of Maroh, and while there he threw aside
his French clothes, and wore clothes belonging
to GlenbuckjT, or his brother. In the ban-
ning of AunI be came to the pannel's house,
immediately before the pamiel went to Edtn-
b, and staying a day or two, went off with a
cobmnd ahoii ooct wMi dour battOD|» audi
bmsl
Jbf Murder,
flh«r MHf of ibe e(>untry dress, whicti he bad
|ldlM up sl>out the punneFs bouse, rdiI con-
iMi4 sliwiii^ Aboat itie cnunlry in th&l dress,
ibe hf*^' ""<! of April, wlipo he returnefl
kti st% and Brayed a Kinc^le niif ht.
11... i ; rijy^ iibout one o^tiork ahar*
lie returned » »ind fmmd the panne) upon
where his servants u erfi covei in^ pota-
Tliey continued there about a quarter of
If in iKe bcsiripg ofiht! servants, when
^tne froiii Mr, CacnpUrtl of Airrli
l»tke pttnnd, desrringf hm) to come to lam at
Kalttpofi bti9ines«; uj>on wbich tlie pnnel
nvlketl with Breck from ihefiirld lu the nonse,
it about fjity yards distance, nnd leavioer bim
thae ftithoiii'goiag' in^ ivent direc^tly to Keil ;
coDtiDoed there until betwixt teif »nd eleven at
ni^t, when returninGr home tie luund there
•ereral rlran^'f ra betfides A lion Ureck. They
nipped all lOj^^uther, and continued in oneraom
until ibey « f ut to bed, lireck lay in the barn
mih the panner^ jions, and one Archibald
Camcroo. The pan net batl no private confe-
with bim ; they were not one moment
iWes, nor ever in company^ but before
faniily and the strangers. Early in the
Dg of Tuesday the 12lb, before Breck
out of bed, and withont set'in^ or «|}eakinj^
rUh bim, the pauuel went to Appin^s hou^ei
Breck was fj^ne before lie returued, and
nel bA» never &eeti him since. What
be carried otf, be does not kuo%v ; but
tutborised me to say, tlint what in laid
tr - ' * !ient ftja^' be trut% that be went off
*o I oat which he n&eil before. That
be v^i^iii i'f lUlbicbtfli^i, Irom that to Gteiico'a
boo*e,audtbentoCallart, and, on Wednesday,
— - liack to ISaliachelj!»J», whtfre he stayed nil
On Uic Tburaday, in the forenoon, he
Bfttlaehelisb's servants in carryings ont
, aud, after dinner, he ^t a tmI, and went
itiy, conlioued tome time iu sight of Bal-
llifadi*u and bi» servants, who were tarrying
001 tbe dung ; but going a little up the water,
a ridng grourtd intercepted their view, and they
lair no more of him.
Thm, my lord» is a true account of the con-
nexion bftwixi Ihc paanel and Allan Breck
' murder, as it will come out upon
H draw this conclusion^ that tbia
I ( :irii?»piiacy must have been laid and ron-
brtween them in a few seconds, wliile
nel wa« w:dkuijj from his potato* gf round
tilns huu&e, at hiiy yards disinnce ; tor at no
dlltf lico€ bftd they any prit'ate conference.
Tkmehuu^lng the cbjlhcs, your lord^hi^^ sees.
Via alioifether uuknowu to iLe puunel, and
what Breck was io use to do at ibe panner^
booa«, and over ibe i« hole coun try. But lok-
kf llie ttory oa It stands in ihe bbeK «vhu can
pOMlbly befieve that the pannel wotdd have
^ven Breck his own c1otiifc>$i to diii^uise bim-
adf fur comnjiitiu^ this murder, or that Bceck
#oolil have put ou tbia diifftiiiie tbur diiys be-
$m9 the murder bapptnejlf Tbe libel says^
.Olttuurewas ccrtaiufv expected on ibe Thura-
diay to return from i'oit^VVdliaffi to Ardshiel.
a 1752. [«
Would Breck then bare put oil bia disguise on
the Monday, and g^one about piddtcty in it ? Nu»
surely » my lord ; children would hnv'o conducted
ft plot better than tht« ; aii<l yet upon thiscircum-
stancp of cbang^insf clothes, as incredible as it ii
Ikhejy repreateiited, stands one half of the pro*
secutor'a hopes (if the libel contains them
afl) of fixinff this crime upon the prisoner.
J proceed to lay before your lonhbips the
aequd to Glcnure's murder. Betwixt six and
seven on Thursday evening, Mackeociif,
GleouiVfl servant, called at the panners bouse^
and informed himi that his mailer was shot
dead in the wood of Lettermore. Tl»e Hbel
says, that the pannel ajmeared nowise Eirr*
prised or concerned at the news; and that
neither he, or any of his servants, went to look
after tbe corpse. IM&ckenzie will not^ tispe not
say so. The pannel shewetl that surprize,
that deep concern, which every innocent man
must feel at so uiiexj>ectpd and melancholy an
accident He directed Mackenzie the nearest
road to Glenduror, to call Mr. Campbell of Bo-
kveolan, Gtenure*s friend, and, in the mean
time, sent such of his family as could he spared*
ami several oi' his neighbours, to take care of
the corpse. Ou Friday nnoruio^, theday after
the murder, the pannel received a message
from Allao Breck, by Donald Stewart, rtepbetir
to Ballachelisb, who bad seen bim iu tlie fields
aliout nine o^clock in the evening before, when
Breck told him^ that as Glcnure was killed,
there would be a strict search for his murderer ;
at)d he bcin^ a deserter^ it was proper for hiin
to keep out of tbe i^ay ; be was iherefore re-
solved to leave the country immeihatety ; that
he would hide himself fur a day pr two in lb©'
desart of Koali^uaooau ; and as be had no
money, he herrffed of Donald Stewart to go to
the panne], and intbrm him of this, and in treat
bim to send a little money to bim at Koalisna-
coan. Donald 8tewart they said to him, that
he hoped be had no band in Gleoure's murder
himself: npon which he took God to wilnest
be had none ; but his being a deserter to tbe
highland army, was tiie only cause of his ab-
sconding, as he was sure be would be hanged|
without mercy> if he wa* seized. Upon re-
ceiving this message, the pannel sent Alex-
ander Stewart, packman, to Fort- William, tivj
one William Stewart, a merchaut there, lo get
tiva guineas from him, telling bim, at (be samo
time, that it was for the use of Allan Breck
Stewart, who was ipoiiig ofi'thi^countiy, as he
was a deserter, to shun the search which would
be mode for the murderer of Glenure. Upon-
the packman's return, be found the panod in
the custody of a party of soldiers ; aoil as h#
had got but three guineas from William i
Stewart at Fort-Wdliam, the pannel gave bim {
other two, and bid him go to Koalisnacoani ^
where he wuidd hud Allan Breck, nod give
him tkie five guineas. Upon which the pack^
man went home with tbe pannet's uife, who,
be ifi since informed, gave bim Breck's French
clothe<i, which he had lel\ ai tbe panuershOiii* _
the Mouday bdore^ bat vvbicb tbe pwia *"
aS] as OEORGE u.
knew noChing of. As to the long episode in
the iodictmeDt, namtiug the oon? ereations be-
twixt Allan Brack aed the bouman, as the pan-
nel knows nothing of then, they shall pass
unnoticed by me. Only I beg leave to make
this single observation to the gentlemen of the
jury, that when this part of the libel comes
under their consideratjoo, they will observe,
that it can he proven by the oadi of but one wit-
ness, and that witness swearing only to what
be heard Allan Breck say ; consequently the
mistaking one word must be of the most fatal
consequence, for this reason, hearsay evidence
is altogether rejected in law. They will like-
wise consider, that what Allan Breck says, is
said by one who wanted to clear himself to the
bouman of the murder of Olenure, which the
bouman charged him with ; for which reason
be might be tempted to throw out insinuations
against others. JLet the jury keep these hints
in their eye, and then let (hero give what
weight to this part of the libel their consciences
can allow them. The pannel was taken into
custody on the 16th ; on the 19tb it was ru-
moured in Fort- William, where he was incar-
cerated, that AlUn Breck was the murderer of
Glenure. No sooner does the pannel hear this,
but he writes a letter to Mr. Macfarlane, writer
to the signet, expressing the greatest abhor-
rence and detestauon at the murder ; tells him
that Allan Breck was suspected to be the com-
mitter of it, as he was that day seen near the
place where Glenure was killed, and imme-
diately disappeared. He expresses his desire
cf having him brought to justice ; gives a par-
ticular description of his looks and dress ; and
further says, he was probsbly gone south, to
take the first opportunity of going abroad ; and
that he commonly lodged in the house of
Hugh Stewart at the back of the Fountoin-
well, when he came to Edinburgh.* This
letter too is bronght as a point of^littey against
the pannel. What strange and unaccounUble
torturing of the most upright actions must there
* ^* The letter here mentioned from the
pannel to Mr. John Macfarlane, writer in Edin-
burgh, had been shown to the governor of
Fort- William, and was receive«l by Mr. Mac-
farlane at Edinburgh, about a fortnight before
any of the two adverlisemente, (vis. one, by
the lords of the regency, and the other by the
relations of Glenure, each offering a reward of
100/. for apprehending Allan Bredc) were puh-
lished in the news-papers ; and really contains
a truer and more exact description of Breck
than either of tbem does. But why the proper
use was not made of this information frem the
erisoner, is to this day a secret, and remains to
e accounted for by bis then doer. . It was un-
doubtedly a great neglect in him, and proved
hurtful to the helpless James Stewart: for
surely it shewed an early fondness in him to
have the murderer discovered, aa no guilty
verson in hia senses would direct bow to know
TrudofJamei Steanirt,
[24
and find out his accomplice'* SapptemtDtto
thnTrialofJaiMiStemrt.
be, to make this criminal? This pupil, this re«
lation, this friend's son of bis, whom be bad
supplied with a little money, to keep him out of
the hands of the military law as a deserter, no
sooner does he hear him named as being j^ilt^
of this horrid murder, but he does all m his
power to have him brought to justice: strange
It is indeed to make this a crime ! What shonld
the pannel have done ? Should he haye con-
cealed the suspected murderer P No, my lord,
he acted a more honourable part, such a part
as tliis court will approve of; such a part as
every member of it would have acted himsell'.*
As 1 have taken up too much of your lord*
ship's time already, I shall hut just mention
such defences as occur in point of law, leaving
them to be insisted on by the gentlemen who
are to support me.
And, in the first place, however willing the
pannel may be to stond the issue of hb trial, it
M our business, as counsel for him, to lay hold
of every handle against it. 1 therefore submit
to the Court, whether this pannel, who is only
charged as accesssry, can be tried before the
principal, Allan Breck, be iirst discussed. I do
most humbly contend, he cannot ; Imo, Be-
cause, if the contrary practice were allowed,
probation might be led against the principal,
though absent, contrary to the fundamental
law of this nation; and it must first be proven
he, the principal, committed the crime, *• primo
* debet constare de corpore delicti,' before the
accessary can be convicted. Sdo, If the ac-
cessary must defend the absent principal, it
may be of the most fatal consequence to both,
though innocent. The princtpal's greatest
enemies may be led as witoesaes, and such de-
fences as would have been sufficient to excul-
pate him entirely, may be omitted. 3iio,
These priucipals are followed by the opinions
of all lawyers who write U|K>n the criminal law,
and likeways by the practice of neighbouring
nations, particularly that of fingUnd ; where
the principal must be attainte<l alter verdict or
confession, before any judgment can be given
against the accessary. But,4to, What I now
plead, 1 humbly apprehend to be tbe law of
Scotland ; for so it is expressly said, Reg.
Msg. ch. 96, b. 4. Cluon. Attoch. ch. Bd, and
39sUt. David S. And, agreeable to these, is
the opinion of our great criminal lawyer sir
George Mackeniie, Uid down in the strongest
terms in his title Art. Part, paragraph 9th.
5to. I must object for the pannel to the rele-
vancy of this libel, that the facte and circum-
stences mentioned in it, though they should he
fully proven, are not sniicient to infer his
being accessary to this murder. Every libel ia
a syllogism : the major propoaition contains
the crime, and the laws against that crime ;
the minor containa the facts charged againat
^ " Here Mr. Stewart was stopped by the
D of A-"— and rebnkcd for saying that
he or any of tbe other two judges would havn
acted such • part.'* SiMtaiiit to tbn Trial
ofja "
25]
Ji^ Murder*
Ihci^jtaotl; aod the eoiiclits^ion is, tbat, from
ihate i¥ci», be is ^itiUy of tlie crime, unci de-
•ecMs ta iiidef tbe p« ins of law. Nov^f it Ike
Afefilt cteffed do not amount to tbe cnme^ tbe
■wnfiiMnii niy4l be iklse, aiiil ttie libel iiT«le-
dU TliiSy I bambly apprehend, is tbe pre-
Me, From the above narration of I be
what obiter vaiions 1 bave alreatly
I iViem, 1 bofic your k>rrisbips will be
ofmmmtif thai ibe circuru stances char^^ed in
the ubel are »o extremely vogue and Iriviat,
Ibat iti^y are not suffident to brin^ the pannel
OB^cf 911 much as a suspicion of being* g'uiUy
•Ttliii bornd crime laid to bta ciiarge.
Ifjraur lordaiiipfi «ball tbink proper to repel
ikrM defimoea, and to remit tbe pannel on
Ibii iodictmettt to the knowled^^e of an assize,
wt huiDbly hope you will allow yg a proof
if aU facta ami circumstaoces ibat cun tend
to liit cxculpalicm ; particularly of his friend-
" * > wilb Gleiifrr« ; of Allan Breck'a b<*iog' a
er, and beio^ iu use to put of}' bii» French
ciotbcs, and put on clothes belungingr to the
family where be happened to be at the time ;
•f the panners having no private confercnci^
»itb birti preceding the murder i of the mes-
nfe which tbe pannel |^t Iram him after tbe
viurtler, litddiog^ him send bim a little money
to Koalisnacuai], where he was going; and^ m
ffoeral, of all other defences that may occur
11 ii0oeasar^ to tbe pannel in tbe course of his
trill. I will conclude, my lords, with a single
wari to tlie geuiiemen of the jury, that tbe
Diore fla{^raut» the more atrocious any crime
iti the more clearly and disimctly they will re-
ipiire it to be made out to them : that as tbe
ctioie It pr(i]>osed to he fixed ujion tbe pannel
by pfcaumptiTe evidence alone, they will be
mmov in distinguishing betwixt audi pre-
Mafpyona as are cooclusive, and such as are
aai so ; between such presumplinni as cfin
ariie from no oiber cause but the pannel's be^
bg* io a conspiracy to murder Gleuure, and
•QCh aa are mure naturally eiin$itrued to hare
mea froto other causes. " If tbey Unil such
prciBniptiuos, as that they can » before Almighty
8ed, bnn^'in a verdict Guilty^ it is their duty
Id 4a ao, and tbe law will have its vengeance.
But lol tbetti have this 3ilway» in tbeir eye,
titti belter twenty guilty escape, Ibao that one
BBoceot man should suffer death by their
Icnlict.
Mr. Robert Mack in tosh ^ for the Pannel.
^Mj Lord Juitice-General, and Lords Com-
t of Jusliciary \ 1 appear also to con-
»iDyifiiall mite towaida the defence of
t^ts fMHodf who has the misfortune to be ac-
caanl ^f « crime, wbidi every binly must ad-
mil lo b« of the deepest dye ; and, as kid in
Ifcft iviftktiDent, attended with the moit agg-ra-
* J drcimstinces ; and I do it, my lords,
<Kil of to opinion of my being in any de*
1 to the task, a share of which t have
to I bot rather tliat a poor man^ stand ^
iug lllil for bis life, may not be absolutely
'^ " #f isiitMce, irb«ii UDCominoii en-
A. D. 1752-
deavours bare been uaed to deprive him ofabl«
help.
My lords, I dare sa}*, every one who speaks
in thf*! cunPte^ on whatever side, will bet^iu iviih
exprcssinir a d<itei*iatioii of tbe crime now
char^^d ogainn the pannel ; if not in accusing
the pannel, yet in this we shall all agree, be|
Gondentn the miserable person, whose
srience accuses himself of it ; whether he no*
stands at tbe bar« or whether be flies from tbt
aveugitig' sword of jnslice. 1 mmt acknow*
Jetlge, that if the pannel has been guihy id,
aooessary to this murder, beyond all C4Mitrii»|
versy it conKtiinles him one of the gi eaten
criminalu that tbid or auy other country caul
affunl. Murder is a hdnous crime, whether jt|
is the fate of tbe eminent or the obscure. But *
thi^ murder seems tti be a aitnphcatioii of all
puilt ; and as my duty calls me to plead iu de-
fence of one laKouriu!^ uuder such an accusa/*
tioo, 1 cauuot do it but \%ith the utmost con*
cern. The very tnentiou of such barbahtv anil
inif)uity, as was just now reiiearsed, could not
fail to move every humane breast; but tbe
rpadiocr of an indictment, such as we have it
little while ago heard, is enoufj^b to iu$pirt,J
horror t ven in the ionoceut/ It is still bardef*
upon me, when I consider the unhappy suf}erer
in that dreadful scene^ which is now to be the
subject of trial J one agaiD&t wboiie life 1 should
be tbe last man to excuse the smallest attempt !
one whom 1 knew, whom ) regarded, whom I
bad the honour to be in friendship with : bia
draih, bail it been common, would liaveatfect- •
etl me ; hut his munler atfiicts me. 1 sincere 1^1
reirret it, for his own sake, lor tbe sake of biSj
friends, f*ir the sake of the poor disccmsoluHJ
lady» who now weeps over her own widowily^ J
and the orphan state of her infant cbihlren ; ij
regret it f<»r the sake of the whole (and, that]
stands polluted by the cruel shedding of in no* I
cent blood I and, in a particular maoner, do ll
regret it fur the sake of tbe Highlands of 8coti^l
land, for which I own, from private con nexioua,]
J cannot help bAviug a regard, uud nhicb I am X
afraid have, by this unlucky accident, su^Vred I
a deep |K»litical wound, that it may take timt |
to rub t»lf the effects of; as being oble to fur*|
ni«h 80 eiuiueot an instance iif barburi^m, ini
spile rd' the noble attempt of the legi^lftiureiij
and of all in the ailmintstratinn, to polish aii4(
civilize ihem, to reduce ihcm to the righteouij
plan of ihe government of this country, and ttt!
a confitiLiiiLoual cquahty with the rest of thfrl
united kingd(»m.
My lords, for these reasons do I most heartily
}otn in deploring this fatal catastrophe. At tbe
same time, my lords, the defence i am now to
plead, fixes my attention u))on a mure agree-
able prospe^'t; that of innocence, ami nut of J
g-uilt; and the importance of tbe issue justly I
chalkntrcs my most Baogiiiiie eflbrts. V\aI
have before its the life and fortune of a man, mi
countryman, I believe an innocent, though no^l
oused oue^ I mu%itbebeve htm innocent* rmi onlrf
as I am yet ignorunt of aoy proof that I thniK
should coDTict bim, but more, as 1 have oat
S7] 25 G£ORGE IL
been able, in a Terjr ftrict ioTeatigitioo, Id difc*
cover from hitnst;!! toy fymptom ofguiti ; and
as the pematioa of ioDOceoce may give cowmge
to defend, so 1 persuade myself I need make do
apology, if I am able to speak with that ear-
nesUiess and freedom that becomes the conse-
quence of what is at stake. And, on the other
hand, I hope to be ezcusetl, if I fail in that ac-
curacy and distinctness, which 1 conid wish to
obserre, from a just regard to the dignity of
this high court, and to the presence of a crowd-
ed, and I dare say, an interested audience, who
are ready to swallow with greediness erery
word that shall he spoke on this subject.
My loiods, before I go farther, I cannot omit
obserfing, what I am extremely sensible of,
and that is, the disad?antages under which this
|>snnel enters upon a trial for himself, and all
that is dear to him in this world, for what con-
oerus ail that is precious to him in another ;
disadvantages which we share in, who appear
as his counsel. But when 1 say so, I would
not be understood as meaning to insinuate any
reflexion upon the conduct of the honourable
gentleman whoprosecules for his majeitty : he
does the duty or his oflioe, tlie duty which he
owes to his king and country ; and gave an
early proof in this matter of that candotir for
which he b remsrkable on all occasions, by
turning a general indictment into a special and
circumstantiate charge. But, to use his own
words, when hindered from doin^ what his
humane inclination eonally led him to, bis
lordship is here but half a pursuer: there are
others ooncemed in carrying on this pfoaecu-
tion ; and 1 am afraid their iust resentment of
a murder, which they had all the reason in the
world to be zealous in searching out the com-
mitters of, has made them unguarded to mea-
sures which 1 should be sorry to see retaliate ;
and pushed them beyond the bounds of what 1
would call humanity, perhaps think justice;
and yet, while 1 cannot approve of their con-
duct, 1 am loth, if I could avoid it, to be severe
against it, not knowing, whatever I now think,
how far rage might have got the ascendant of
reason with myself, if in their place. One thing
is obvious, that though it is true, that the justice
of our law agrees with the common law of rea-
aoo, in presuming every man innocent till he is
proved guilty, yet we have rcaiion to fear we
come li^e oppressed with prejudice, to create
and propagate which, against this unfortunate
pannel, no pains, no expence has been spared,
with manifest intent to prejudge him in his
trial ; and in this have some people been wise
in their generation ; well knowing, that as pre-
sumed innocence is a great advantage in a trial,
so believed gtiilt is no small step to canviction,
and otien anticipates the just foundations of it,
which can arise only in proof. When I see,
and am sorry for this, my kirds, in one view,
yet do 1 most r^oice at it in another, as it
abews the weakiiess of the cause that has
Beaded anch artificial feet to support it, even
io the bwioningt and which being removed, aa
I hope my toon will boi Um inpcntnicture'
Trial of Jama Stewart ,
[28
boilt upon the false basis will also fail. There
are other things too, which the law of the laml
would intitle os to eomphun of, and which a
few years oaore experience might make it bet^
ter become me to exdaiui against: a ckwe
confinement of the pannel, contrary to the aa*
cred charter of Uberty, which this nation boasts
of; abd which illegal proceeding waa only re*
luoved of late by the interposition of this Court ;
imprisonment of wimesses to be adduced against
him, where none had access to them but the
private prosecutors, or their agents, removed at
a distance from the check of my Lord Advo«
cate's superintendance, whose oflaice, though il
intitles hrai to investigate the proof of public
offences, yet renders a privilege, dangerous to
be indulged to every injured party, sale in hm
hands. The pannel has had but short wamhig
to prepare for his trial, tliough he was at great
distance from the capital, from which only he
could have counsel and assistance: and it is but
ftry lately since his counsel had access to see
himself; not for some time after we were in
this place. These things 1 only mention, aa
my brother has already fully opened them;
and I mention them, my lords, as what may
have aome weight with the jury, who are to try
the pannel, (and whom 1 now consider myself
as addressing) to remove the prejudices that are
so naturally, thoui^h insensibly, imbibed with-
out doors, and which especially arise in the
mind from the unavoidable, though inconve-
nient situation, in which a suppowd criminal
must appear, even when as vet the law pre-
sumes him not guilty, loaded with irons, ami
surrounded %vJth guards.
My lords, 1 do not mention, as a disad-
vantage to the pannel, the place oif his trial. I
think it can be none: there are reasons why
this place may be more proper for the trial than
any other, whether the pannel be guilty or in-
nocent; that be may be either acquh or con-
demned, and justice may take place where the
crime was committed. And one advantage the
pannel most surely profits of by the trial being
here, viz. the presence of the prince who pre-
sides in it, and who,*in a special manner, is tlia
father of bis own country, as he justly ai)|iear8
to be of this part of the kingdom. This of
itself is more than sufficient to balance a dis-
advantage, were it possible to suppose any
could arise from the opportunity that affords it.
At the same time, I would, with great defer-
ence, observe (and I hope 1 may do it without
giving offence, which 1 am sure I do not mean
to do), that there may be something in this,
which calls upon tlie jury to be cautious ; and
I hope an attention to it will have the effect to
make them rather lean to the favourable side,
than be disposed to make any stretch against
tlie pannel. It is the privilege of the subjects
of this country to be tried by one another : yet,
when we have thia advantage, and it is aa
inestimable one, still it is to be tried by men of
like passkms, i. e. like infirmities with our-
selves ; and ail mao are more or less siiscep-
title of pr^udtoe. I boye^ hQwercri I amf
59) ^^^^^ >r Murder,
mMj tmci to lUe tMm^ifir of such ft jury as witt
bpfrntnpan ttie }»Aiitief''s trtu), that they yvjU,
if utj ioeh tberc are, lay aside all regard lo
cMmtry rdtio' tuns, divest them*
lilf«i 9f tU ; I sit iUmn to the
trial «Mi»ai' luuti i<i y\etil only to
IImi IbfBt vf Ir Mucr rather to s^e in no*
hy * ...,.,^-,1. si, than gnttl, un**i!ihed-
ill OBodrmticd, uml ittctiiti-d to gife the
Wf«vr«iir nn ihe (Viifniiraiite shle, Unless the
Plvifili'i aranJ convincing.
jHrttli m I ^ ri and pubtic, and
iht^ytt ot* the wnViil are a check both Uf>oQ
j^igi I Ynd jtiTT ; nnd as this murder has been,
laH 'lect of an extended specula*
l»s. ' t t'^r it : ( hope, be the issue
•fiAy»L«iiL^ li be so cnnductedf as to
I MUXktt ^ nnc^rned in it ; and, I
Itmi^ couhl I susj>ect thai the
rountry, or the court, could put any
mt** ^ viho Hould ovtrlook their
iiVi wbtch I dare say is
M..3 I ' It. Ht lit case, I would put
that, it I hey ha^e no regard to
V aij.ul,! ree^ard theinseivei ; for,
^iid, Nob«Miv is happy
i ihe paniiers fate to-
►rrow, aud what is proof
I >;j|iuil another loo gaffer
thk. £*«>ir trill, tlierefore, thou/,'h it i»re-
ifgily alfala optfy those trho are iin*5er it, la in
^^Kpivklsm ^ those who do try,
■ iij lonia, liAvitij^ i^iil m much in general,
{m4 1 Ikiolt I eouhC !«ay no les«) ii should be
feiy mvinac aowto state what has occurred to
9f m ib« ddeoce of the pannel against tUia
b«rof njrou
m
l»rr#, my Iord<i| we have a most bar-
iiMlctil • shocking murder, charged
tm pe»ons ; hut with tbb miterial
the two, thai the one is by
teiBifiirinuAi charged as the actual ipurderer,
hf liMBdf ; DO mortal along with him at the
erf it ; and ihe other is only ai-
ry tberelo, as having been in a
cjoosptracy with the murderer: and
to bi* tried, is this conspirator,
l^ lanU, I do not diKtinf^tlj see, from the
It as laid «{*aiii^! Hreck, what proof
Itotwtll be of hi 'lA actual murderer.
li^ttli at jirwit , from the way in
•bi«^ Iba alory t« toiti, that there can be no
Ct^ at t«m«l tio direct* no stttij^lying proof
bttbftt n * - f [ um sure of,
Ii impossible
. w» 11 coo8pfracy»
•jns accused we're
**'^ my lord ad-
I think, very
fl liit cliai^'c
' _. the
Hr eoo«p«racy. find it is uputi the
riiliaatit or impftri »>f th»-rp HrrrtuHtances,
^lU •» ■itmi' For it
li» N tmtf Jog ih&
A. D. 17-.2.
relef attcy of the indtctmeot. we mean to call in ]
fjiie^Lion that murder ia a crime : and, for m^ ^
own part, las little coDlcst, that, asth« law noir]
stands, the charfre against the paiiuel in thol
general propoatU'iQ of the libel is relevaat, that ]
he \s g-uiky , actor, art and part of the murder J
of Gleoure, And I do farlher admit, that, if the ]
pimiiFl has beeu accessary to, or il*e former of
conlfiver of a conspiracy for perpetrating thig J
horrid murder, he is truly na much art aud part j
thereof, as the actual murderer: nay, wer«J
tliQt the case, I should not hesitate to pro«^j
nounce him, if (lossible, a greater en minal ihaiij
the u]i9ci*eant by whnse hauda he accoinpltf^hed I
the wicked assassination. But it is my busi<l
oess now to endeavour to shew, that the cir*^]
cumstaiices condescended uoou in the libel, ontll
on which I must sup()05e the proof 19 to reit,4
are not tantamount to the general charge ; or^ J
in other words» that the premisses of the indicl*i
meot, supposing them true, do not infer tbel
conclusion, much less will they support it, |
when they appear tu that light which J hop*']
the proot will pUce them in, divested of ih«]
romantic dress of exajrgeratioD, in which fancy^j
has dressed them. And when I attempt this, f
I owo, my lords, it is not with design to in- I
flueoce your lordships' interlocutor ; ihr^ ;is f 1
have already admitted the general propositioti (
of ihe hbel to he a relevant charge, I suppos^
the interlocutor of the court will be confined toj
that, it was the custom, not many years ago^i
for the court to pronounce special interlocti*!
tors upan such indictments as the one now un«^
der consideration, findinj:;' what factsor circum*!
stances, Sf proven, would infer the charge :4
but your lortUhtps^ later, aud, 1 think, bette^
practice, hos been to evade thai, as what, if ill
imd any effi^ct to inflneuce Ihe judgment of the J
jury, did in so tur deprive the pannel of hifl
rightful privilege to be tried by the jury, aniT
not by ihe court ; or as, what ludeed was mor«
likely to happen, being a thing that had no
eJfect at all, as the jury woutd judge ove
again for themselves, what the court bad ineptlyj
judged of for them. T say, therefore, my lordJ
I do not speak so much ?or your lordships, t
for the jury ; willing, 90 far as 1 can, to gutdt
their attention to where I apprehend it ough'
chiefly To he fixed, in the proof they ar
to hear ; and to help them, if V can, to judgi
on what part of it they ought to lay srress m
forming an opinion of this cause.
There is only one thing which 1 must sub
mil to your lordships, and nhich I shall bu
mention, as my brother, who opened the de^i
fence, has alread\ offered it, and your lordship
may hear more "of it in the reply to my Ion
advocate; and thai is, the prejudicial <|ut8tio
bow for the pannci, charged with an accessio
to the crime of another, can be trieil for it, till
the principal is Hrst discussed. Your lordship
well know, that an accessary docs of iix owq
nature follow a principal; till, then, then.' be 1
l»rinripal, theri' ran be no accessar3% and lbi_
^inurupitl bein^ removed, the acces^iary is also
tak(;it away ^ atid ibcre^r«, till the ooe it con-
3ij
23 GEORGE II.
Trial qfjamet Stewart, ■
[S2
victed, there b no room for tryiDg; the okber;
io like inaDner as the principal being acquit,
t]ie accomplices cannot be cunclemned. That
the law stood formerly so, is most certain ; as
appears from many authorities, which I tor-
bear ciiiu((. How far this ie altered by the
act of parliament, introduciod^ the law of art
and part, will be subject to the judjj^raent of the
court, where I lea?e it. But I must at least
inform the jury, that, however the law stands
in this matter, it is undoubtedly certain, that
they, or any jury, cannot convict an accessary,
but upon this supposition, that, if the principal
were under trial before them they would con-
vict himf '* Q.uando proceditur contra aliquem
tanquam quod prcestiterit auxilium, debet con-
stare principalem deliquisse." And the ifenlle-
men of the jury will take heed to this, that if
they shall find cause to convict the pannel upon
the evidence tliat shall be brought before them,
they do, in the most express manner, declare
their opinion, that Breck, and no other, was
the murderer of Gleonre. Nor must they
hoM suflScient for this pnrpoie the presumptive
couviction, which arises from his flying justice,
and being fugitate and outlawed by the sen-
tence we beard tliis day pronounced. The
law says expressly. That no fugitation of a
princi|)al is to be held for a conviction against
an accessary ; and indeed, why should it? for
tlie confesjiion of the |friucipal, were he now
here, would not be evidence against the pannel,
anil much less must his absence or run-away
have that eftect So that the jun|f must here
consider, that, before they can convict the pan-
nel, they must have such evidence against
Breck, as would condemn him, were he on
trial. And so, leaving Mr. Breck till we see
what proof comes out against him, the question
is at present, upon what is the charge of the
pannel's guilt tbundtd ? or, ar^ the circum-
ataoces alledged iu the indictment sufficient to
Aupport the accusation of art and part against
the pannel ?
And here, my lords, I do n6t propose to en-
tertain your k>rdships with a nice disquisition
on the kw of art and part ; &ufier me only, in
three words, to ment'u)n that, so far as 1 can
comprehend by the law of 2$cotlaud, art and
]iart is inferred from circumstances antecedent
to, concomitant with, or subsequent upon the
ftctual Commission of a criuic. Now, my lords,
when 1 look to the indictment before me, J am
able only to perceive two facts condct^ceiided '
upon, from which the pannel's accession to this '
murder is to be inferred ; the clothes alleged to
be furnished by the pannel to Breck before the
murder, as a disguise to commit it in, and the
ONNiey sent him after tlie action, to enable him
to go oflf tlie country. These, 1 say, my lords,
are, so far aa it appears to me, the only two
considerablo circumstancea to infer accession :
for your kirdahips will observe, there is an ab-
aolate blank as to the principal neriod in which
foak oqght to appear, the actual commiaaion of
tM ertBie | al kaat, so far as 1 oan gather.
tk«»iB Mi OBO oonooaitant circumatance al-
leged against the pannel, which connects with
the actual murder. And as for the circum-
stance of the pannel's sending the money to a
certain place, where as would appear from the
indictment, be had no access to know that
Breck was; as to, that, I say, and some ones
of lesser moment, which I likewise take notice
of, I take them to be designeil as a key to ex-
plain into a connexion with the murder, the
two facts already mentioneil, by shewUig a
previous knowledge of the murder, which the
tads themselves do not import, and yet with-
out which they have no weight. Upon these
two cardinal facts, then, attempted to be sup-
ported by the other lesser circumstances, in my
apprehension, lies the burden of theprosecutora
cliarge. And 1 will beg leave to say a few
worcb to each of them. .
But, before {larticulars, give me leave, my
lords, as shortly as 1 can, to make an observa-
tion or two upon the nature of proof io general.
And, my lordsi 1 think it is a common, but %
well-founded maxim, derived from better ao-
thority than mine, that, in proportion to tho
greatness of a crune, ought the strength of the
proofof it to be. The higher a crime is, and
the deeper it draws in its coosequeocee, so
much the clearer and stronger ought the evi*
dence of it to be : and indeed justly ; for, I
hope, bad as men are, corrupted as humaa
nature is, it is not come that length, that vico
is natural to mankind. 1 rather persuade my-
self, that it costs some pains, by rooted habits,
to extinguish the sparks of reason, which are
the seeds of virtue. Ilere then, my kMrds, is a
crime of so enormous a size, that it ia almost
too big to believe ; murder, deliberate murder,
assassiuatiou in face of the sun, in defiance of
all law aiul government. What proof should
tlien be expected of so monstrous an offence ?
That one should sit down deliberately and
coolly to form a conspiracy of bereaving ano-
ther of his life, in so horrid and barbarous a
uianner ; what degree of flagitiosity must nut
be proved to suppose one capable ot it ? Sure,
tliough many circumstances be brought to
establish a presumption of guilt, yet to believe
it is no easy matter. Must it then depend upoo
guess* work? Is it to be tried upon questiona-
ble evidence ? or, is a jury to be persuaded into
it by art ? No, there must be the most |»al|iable
and iucontestible proof ; aud, unless the evi-
dence is full and plain, no credit, 1 n ill venture
to say, can be given to so black, so detestable,
und so unnatural a charge. It would almost
require to see the blood of the innocent reeking
on the luinds of the guilty. But w hat have wo
here? Preauroptions built upon presumptions;
siutpicioos, and these suspicions supported
by others ; suspicions without ]»roof, nay dia-
provetl. We have first to get over the belly of
a good fair oharacter, which this pannel oad
the happiness to posaeaa, a blameless, moral
lii'e io private.* And,shoold he all at once have
* There is a tradition that here the Lord
Jmtice Genenl intanuptcd Mr. Mackintoih,
S3]
Jor Murder*
4m\aSbeA to far fimiii the paths of Tirtae ? Coold
be to nddenly shake off a regard to all that is
Mcred f I should hare expeOed to have heard
arfed against this pannel, theabandooed disso*
lotMiess af his tnanners, the barbarity of bis
uMvCythat his life was one continned course of
widwdatss; ib short, erery part of his charac-
Isr dsfuHd 10 narder ; that be was one inared
ta the pradioe of it, and distioguished by the
■on ooiMiMimated guilt : yet not one of these
cataiusta— ea so nioch as alleged in all this
ipnravatad eharge; and for a good reason,
fB. That the eoiitrary is well kopwn to be true
by (he pmaeculars themselves. Next, my lords,
wfaeo we eccfc for a cause of such a malice as
ooold pradoce this crime, we find a cause that
never sufaaiBted ; a cause noways adequate lo
the effect : resentment ; for what P For «e-
oepliDg as office which somebody most have
fp^ \ and none oould have made a more favor-
able vs« sf, for the friends of the pannel, than
this gcailensn did : ( for which reason they will
he pftwcd to have been in good friendship long
after that ;) resentment for tnniing out some
tcnaals f/om an estate forfeit to the crown $
irreooeersMy lost to the family with which the
paneel waa eooilecteii. This is the foundation ;
and what is the soperstractHre ? Of a piece with
k truly. Why, the murderer had on a coat of
the psanel'a when he committed the brutal ac-
IM, and got money from him atler it. Here
b the proof; a circumstantiate proof it is called.
Me ferda, I have no objectkin U> circum-
•teniiate proof; what the law calls argumenta-
tive evideiioe. I do adroit, that it is a legal and
■roper sort of eridence, as much as direct proof
by wiiacases. Erery thing is legal evidence,
that is iuefa real and certain proof as ought, in
meral justice and equity, to be receive<l : for
what ia evidence of a fact, hut such testimony
■a the nature of the case requires to induce a
■eial eartainty of the thing testified P And an
■iguiMat ia nothing else than what gives faith
trcradit to a thing in itself doubtful, which
psrfiKlly agrees whh the law definition of proof
sr provmif, which is fidem facer e, 1 will ad-
mit further, that circumstantiate evidence,
wheo clear, is perhaps the most satisfying and
eaevioeieg proof of any. Circumstances are
iiitiiibli proofs : they will not bend to the in-
rihsiion w parties: wimesses may be mis-
lAea, may be eorropted : things can be nei-
te; and therefore, so far as they go, deserve
sibMled, oareserved faith.
Batthea, my lords, the circumstances must
kedsv, certain, and well connected : no blank
ii the ebaiDy else all goes for nothing; the
J with moeh vehemence, that a fair cha-
r aod blameleM moral life could not belong
■v nso who had been in rebellion against
bag; aed that Mr. Mackintosh in the
rmth ef the osoment represented to his grace,
Ail it HMght he very difficult to say how many
if the Afgyiea had been in rebellion against
iksir kuM. 8ee • sole to the deposition of
1>smM C^MpheU ef Akdi,iothe Proof.
VOL. XIX.
A. D. 1752. [S4
arguments most be perspicuous, nervous, and
conclusive. The same law that has said,
** crimina posse probari, vel testibus, vel docu-
mentis ant indiciis,'' as it requires " idonei
testes," BO does it " documenta apertlssima,
indicia indnbitata, luce meridian^ -clariora.'*
We must therefore, my lords, carefully distin*
guirth between circumstsntiate or argumen-
tative evidence,, and bare presumption or^ven
probability ; much more suspicion and con-
jecture, with all which it has a near affinity^
and is therefbre apt to be confounded with
them ; for they all depend on facts or circum-
stances. But, says our i^eat criminal lawyer,
sir Greorge Mackenzie, crimes cannot be proved
by presumptions ; for presumptions are only
munded on verisimilitude, and what may be,
may not be; whereas all probations, especially
in criminals, should be infallible and certain ;
** conclusio semper debet sequi debiliorem par«.
tem :" If otherways, says he, jud^ (or juries
now) would be arbitrary. Probabilities, again,
says a good reasoner, twenty of them alloweil
to be such, arc not equal to one matter of fact
well attested : they may strengthen the fact,
but cannot supply it: they cannot be evidence
themselves, because one probability may be
set against another, and so mutnaJIy destroy
the force of each other: and as for suspi-
cions and conjectures) who will pretend a right
to indulge them, where life and fortune are
concern^ P
Guarding then, my lords, against these things
which are ready to mislead^ let us, and let the
jurv, my lords, examine cautiously and can-
<lidly the circumstances I mentioned, on which
the burden of the indictment lies : let us see
if they approach a proof; if they do not more
|Mirticipate of the nature hardly of presump-
tion, not at all probability, rather simpicion and
conjecture ; or if they amount to a solid and
suMtantiai circumstantiate or argumentative
evidence.
My lords, I mentioned first the clothes :
and [lermit me, my lords, once more in ge-
neral to obsoi've upon this circumstance, as
itell as the otiiers that follow, that 1 do, with
great submission, apprehend they derive their
whole weigiit from a belief of the pannePs
guilt, which it is indeed very natural to enter-
tain from such circumstances as he now ap-
pears in. The indictment sets out with laying
down this crime in the most ugly colours, as
indeed it jnstly does deserve ; and then sub-
sumes, that the pannel is guilty of it ; and I
venture to say, that, take away the influence
which too easy a credit to this first position
gives to what comes a(\er, all the circum-
stances brought to support the charge will in
a great measure lose their force ; so that the
assertion of the charge is the very thing which
supports the circnmstances adduced to prove
it, than which nothing can be a more false cir-
cle of probation. Prejudice, my lords, is liku
a jaundiced eye, or a magnifying glass. To
the first, every thing ii looks at appears yel-
low ; and the last to appearance, increases
D
85]
15 GBORGE n.
Trial of James Steooatif
[30
the bulk of etery object to which it is applied.
Jtut so prejudice discolours every circum-
stance, turns the most trivial into somethin{jf
of importance, and makes what is in itself
indifferent, a proof of ^lilt. Can the troth
Qf this appear more vended in any, tlian it is
in the present case?
My lords, I will not repeat the true fact, as
your lordshi^is have already heard it opened,
with respect to the clothes : had it been that
Breck had really received them from the pan-
nel, sure that of itself would not hare proved
the pannePs accession to a murder committed
by Breck at the distance of so many days.
But has it any weight at all, this circumstance,
as it has been told your lordships, and as it will be
proved to have in fact happened ? A man comes
to my house, and, without my knowledge, puts
on, and goes away with my clothes; and
when wearing these, a murder is committed :
roust I be accessary to this murder, or, must
1 be presumed accessary to it ? Breck, your
lordships hear, was in iise of changing his
dress : he had been six weeks at one time in
Raonocb with these very clothes ; and because
be has them upon him again at the un-
lucky period, must the nannel for that be
guilty with him P My lords, we have heard of
Tillains borrowing, stealing clothes, assuming
characters, feigning voices, and such like
things, when about to commit crimes, of pur-
pose to deceive, and to throw the suspicion of
guilt off from themselves upon the innocent.
But surely these are dangerous circumstances,
and would need to be supported by better proof,
before the lite of any man was taken away
upon them ; or indeed what man is safe ? It
will not avail that we keep ourselves safe, so
long as it is in the power of others thus to
brin;>f us into danger. Every man must so be
at tbe mercy of others, obd those of the vilest
of mankind. The libel indeed says, the pan-
ucl furnished Dreck with his clothes ; but how.
is that to be proved ? Did the pannel give him
them ? No, my lords, we shall prove he took
them, and went with them from the pannePs
house, when he was not.there, when he knew
nothing of it: But though he had known, as
he did on former occasions, or though he
bad with his own hands given them to Breck,
would it have been proof against the pannel ?
I cannot imagine it. I might admit, that had
Breck never before changed his dress at the
pannePs house, hsd this been the first time, it
mi<>^ht have been a circumsunce, and but a
Wi'ak one too, from which to presume guilt
a^^ainst the puuuel : but when he had been in
use of doing it, does there from thence arise so
much as a distant suspicion against the pan-
nel ? Whatever effect it may have against Breck
to presume that wicked design, which I shall
at present take for grunted be soon thereafter
executed, (lo |iresuiue it, I say, against him)
that he i:hunged, at so critical a conjuncture,
bis dress ; yet sure it cau haie no influence
against the punnci, m ho, till it is better proved,
cannot be supposed privy to to horrid ao under-
2
taking in Breck. And this, my lords, puts me
in mind to make a distinction, which I should
have made sooner, that is, betwixt Breck and
the pannel. And I must call upon the jury
carefully to separate the parts of this indkst-
ment, which refer to the one and to the other ;
for, when they are confounded together, one, in
reading or hearing it, is extremely apt equally
to apply the effect of all the circumstances to
both. The indictment has so chequered them
through other, that it costs some pains to dis-
tinguish them, and lay to the door of Breck^
and of the pannel, what separately applies to
each, and seems to support the different chaig;es
against them. To shew the necessity of this,
i will but mention one paragraph of the libel,
where this c<)nfuKion manifestly prevails. It
is there first said, that Breck havmg come to
the pannel's house on the Monday evening,
James Stewart the fmnnel was informed by
him, (Breck) or by his son Charles Stewart,
or by Fasnacloicb's daughter, of G tenure's mo-
tions and resolutions. And then it immediately
follows, *< And there, afW receiving such ad-
vice, in the evening of the same day, the odd
Allan Breck Stewart laid aside his own clothes,
&c." So your lordships see, that first Breck
is said to inform the pannel, and then Brock's
receiving such advice or information from the
panne], (just inverting the thing) is laid down
as the spring of Breck's actions, with a design,
as is plain to extract guilt against the pauuel,
from nis giving intbrmatk>n to Breck, which
produced his action, when it was truly Breck
himself that informed the pannel, as the in-
dictment first asserts. This, my lords, may
be an inaccuracy in wording the indictment ;
but it is not for that 1 observe it: I mention
it, that the jury may see how carefully they^
must consider and weigh every branch of this
complex charge, as being heedless to one
branch or circumstance mav have bad effect.
And surely it is evident in this particuhir, that
the weight of the circumstance, as laid agaiatt
the pannel, wholly flies off by a just attentkm
to the erroneous connection of the fact as nar^
rated.
There is another circumstance of the indict-
ment, which, though it does not fall so directly
within my present view, 1 cannot omit taking
notice of it, as it comes across my thought ;
it is as to the iiannePs behaviour, when the
murder of Glenure was first notified to him by
Glcnure's servant. It is said the pannel ap-
peared noways surprised or concerned. Alas !
my lords, what such proof of guilt is this? We
have seen doubtful actions by the help of in-
nuendoes construed criminally ; but to give
that in evidence which was neither said nor
done, to construe silence into ^ilt, is entirelv
new ; and the author of this invention will
deserve the ^lory of the discovery : this is,
indeed, to conjure one into a crime. My lords,
I could venture to invert the proposition, if the
gentlemen please, and maintau, that a cuotrary
behaviour, to any remarkable degree, would
have becu more suspidouii * Tccmor eti aig.
m
Jbr Murder,
kit
' wm ctt^ii/ or in the words of the f»raverb of
flsrowii wmntry , Tlie g:rcatcst thief cries first, fy,
Bi0, my ftM^fti ttie fiict is dlflerent from what
ilbllMlIlbeK It villi be nroved to yoar lord-
MptMiillM jury, that the pannel, upon re-
cdvUgHiit fiiiroe of^ 1 must call it inelancboly
ttcnn^ fXfirMeil to ihe me^sengr«r a decent
mnctrmwmA rrp^, thnngb ItUle did he think
ai tlm lime, ihat his hphaviotir then would now
be iiUM^bt toio jiidgtnetit agiin^t him«
Of th« Mtoekttid with this^ niy lords, is an-
ciieiraixUnoe, which I reiiieraber in the
I (for 1 cannot go through them all ;)
UH « letter of the piinnels to otie
i^btwnrl* reeling to the price of intlk>
* eottlm, my lotdn^ it is to me myste-
I jflL ivlHa import this tetter is of as a proof
iQtfl fM patinel. If it is, that the subject of
led to he ttctitioiiS) that we shall be
Mt lo ft«yve rtal. But what connexion has it
wilki Uw daai^ ? I own I cannot fiud it out.
Il wmdit iiiiifario me that this letter must suf-
fer Mrlom, 4iid not a tittle of it, befbre any
tlsii^^so krif|isee2ed out of it agaiim the |ran-
wtL ll^li Qieiii mind of a saying^ of a gfreat
yoi fcry wkleed polilict;mt cardmtit Maeaniie,
wli« iesiid t« tiave housted, that, if he had but
ImtloeB of e tnmn^t writing', with a few circum-
ttvcn alleAeil by witnesses, he would cut off
■•y aieii*! Iimd whtin he pleased. Thank
Gail, we ^Pe^tlie in a climate different from the
pootiff ruled iu : at>d 1 hope we do not
i in Mood so much aa to adopt bia cruel
Tbioe tllifigt, roy lordn, I hnre ibrowo out
If file woy ; but aa to what I wsm itpon, the
^^^■rtUoeie of the ctotheii, t ahnll onl^ add,
I aa il la in truth, it aptieara of no weight at
\ mo4 bad tt lieen nn m the indictment, t
thought it a circumstance gretitly
I alender to build any ibiog upon,
roftly ttt<-n rfiTtaitis tlie other circum-
iq' -^ (licb ia posterior to the
iilrcndy hait nccn^iion to
e, I «a oiii aiicover a concomitant circuru-
_ td, utleix ibe arms be pointed at
fee tkia fiiripose ^ a« I ob<ierte, there are twn
fiOB meiitiQ^ed tti the list nf evidence^ im found
HMukd if^jvr i»u fknriners hotise, and which
foaibly U>«' ^ will attempt to pruve
halianrbern ■ icb the indictment says
Ifitfc hmd kruiight, m rriusrd to be brought to
iboyUce of the mnTr|*»r, Were any tbinj^^ of
Mli lie pf ( ' ill tairly adfUU it would
|p tiir9if*f f re, as it is one of these
^' iVf points out ;• Opem
•'• patralo non inlerfucril,
*famitrc-nta > i Hfuniodaverit,
*lrti>icii)o» Liet* Out I
•PtwS tlnni:: Ilk' this
i.» , ihUi. 1 iUnik it
h fPftitiBolile ih' r wiiuld carry bii
■■■ w^b h»m. ,i I s iirm to liii* wicked
fVfaae, Ai i^ found conoe;ileiJ
Wmr the pocirj are instructed to
iay, tbcj iwtrt ui thu p«uoora boium »t the
H^ A. 0. 1752.
lime of the murder, and were hid ofler it for
fL-nr of an apprehended search for aruis^by tho
iiiilifary that was eicpected to come into the
country.
This therefore I leave upon the proof, and*
idialt now, in a word or two, take notice of the ^
money sent hy the pannel to Breck after the
njurder And here, my lords, I must be al-
lowed to observe, in the first place, what air ^
George Mackenzie's doctrine upou this [loint
is. Ilis words are, sect. 7, (tit. Art and Part] '
** assistance given after the crime is committed,
scarce deserves the name of assistance,^' And'
cites an authority for this opinion. 1 wilt ad-
mit, my lords, that, if this pannel did, knowin|f
Dreck to he the murderer of Gtenure, admi-
nister help to his escape, hy furnishing him
with money, he did a very wrong things ; per-
haps was i^uilty of an offence, which the law
would punisVi. — But it is an offence quite dif-
ferent from that of accession to the murder. Il i
is a species of crime by itself; and, as my ]ord.|
advocate has not laid his proseeutioH for that,
we have nothins^to do with it. At the same^
time, my lords, however wrong- such a conduct*'
(nio^ht have been, yet it could admit of an ex*
case. Your lordships have heard this Breck
was the pa Duel's relation. He had been hif
pupil, broui^ht up in his family till he went
into the king'a service as a soldier; and we all
know, my lords, the strengjth of compassion on '
such occasions, especially to our friends, it ^
would perhaps be hard to'punish tor it, Th«'
worttile^sness of our relatione does not at once
dissolve the ties of nature ; none of us can be
sure, but we may have a wicked sou or a hro* ,
ther; and, in a case of this sort, it would ho'
natural to wish to help him out of tl^e way;
perhaps it would be wrongs, hut such is ilie
known force of natural ties, and it, at least, les«
sens the crime. However, here, my lords, the'j
case does not apply ; for we absoliit*ly deny,
tlitit the pannel knew any ibin^ of Breck*i
l^uilt ; and »uch knowled^'e can never be*]
presumed; he knew the situation he wai'j
lu as a deserter, and the hazard of it, '
wlien tho mihtury were cominsr into the
country to innke o search : and to be sure, bad' j
tie been calcheit by the military, tliey would
have saved your loidahips I tie trouble of tryio^
him, aupp4ising' him to l»e i^uilty : a court-mar-
tial would have made short work with him,
unless it hud tieen (as likely it mi^bt) ibov'i^ht
more for the end of publi'c justice, to mo 1*0 •
him suffer for so fla^ant an offence as this,
than to hang him as a deserter. It was (br
this reason, my lords, and not tVom any know«
ledge of his guilt, that the pannel, upon Breck*s
message to that puqiose, as your InrdHliips I
have heard, sent him the money to enable bintl"
to get otr the country, and go where bin bust*
uess called him ; bis business, I say, roy lords ;
but at the same time 1 call it his il)ei)fa{, hii [
unnatural business, us an enemy to his coun- <
try, and a traitor to his king» And as to the
circumstance which I formerly noticed, as
teodiiig to t>oiut uuiihe ptun el *§ previous kuow-
3t)]
25 GEOHGE II.
Trial qfJwMt Slemart,
[40
Icrft^e of Breck'g motions, by his knowing
' where to seud the money, 4hougli be bad no
accesd lo see Brcck after the munler ; as to this,
] say, my lords, your lordships see no stress
can be laid upon it, when you have heard that
it was by a me«Mgefrom Breck that the pannel
learned bis motions : so that still s<imeibing is
desiderate here, whereon 4o fix that circaro-
stance, upon which alone depends the paii-
nel's accession, to wit, his foreknowledge of
the murder.
My lords, 1 liare finished what occurred to
me on the circumstances of the indiotnoent ; and
I am unwilling to weary your lordships.
I forbear entering upon the booman's con-
versation with Breck ; that is but one roan's
story of what another said. It is but hearing a
hearsay, or rather less ; and I know no law,
no rule, it rather seems contrary to all rule of
<;vidence, that one should suffer for what ano-
ther said of him ; and that the very guilty
person, as is here supposed. If he did say so,
It might .be to throw the suspicion off himself
with the better grace : but, be it as it will, it
can be no evidence against the pannel.
There is but one oilier thing in the indict-
ment, which we have to finish this doubtful
evidence, if it can be called so much, and that
is, the threatenings ; but, as they are libelled in
general, I cannot argue upon Uiem ; nor has
the pannel any opportunity to disprove them :
they must. therefore be left, till the evidence is
concluded.
My lords, I have said what I could, from
such helps as were in my way, upon the nature
and import of this sort of evidence which is
now betbre us. 1 shall only say further on it,
that this sort oi' evidence, when imprudently
handled, may be resembled to the monstrous
machine fiir making bavock of enemies which,
when invented by a subject, was wisely
smothered in the birth by the governor, lest,
however convenient it might be when used for
him, he mi»ht come one day to regret the in-
vention, when he found it applied against him-
self. And as to this particular case, I take it,
that ev^ry individual circumstance, as laid in
the indictment, so far as we know of it, will be
unsupported with evidence ; that all pnt toge-
ther do not amount to the char^. I think
there are no grounds tor any private opinion
of the pannel's guilt, but wha^t arise from pre-
judice only. I think prejudice, or even opi-
nion, has nothing to do with judicial proceed •
itigs. It is the judgment that must acquit or
condemn ; and that must, can only be founded
OQ eviflence, on proof, not on suspicion or pre-
sumption.
I shall now take the liberty to read to your
lonleiliips, and the jury, the words of a great
criiniual writer on the common law, when
treating on the subject of argumentative evi-
dence. Math, de Crim. ad Tit. 15, Cap. 6.
He is speaking of arguments, and taya, " Ar-
gumentum est neceasariam, cujua conseqaen-
tia est necessaria, faluti ooivisse eam'qna
pcperii; contingeoiy cojut conacqueDtia «l
probabilifl, veluti csedem fecisse qoi cruentalus
esf Then be adds, " Contingeutia argu-
menta, quamvis tinguk fid«m uon faciaat,
plura tamen ooi\juucta crimen manitestare pos*
sunt. Hsec ap|f^lantur pnesumptiones ; pne-
sumptio eoira nihil aliud eat, quam argumen-
tum verisimile ooramuni scnsu peroeptum, ex
eoquod plerumque fit, aut fien intelligitur :"
And be gives the following example of an surgo*
mentative evidence which may oondema,
which I beg the jury wjll attend to, " Ocoisus
est kaleodii Mcevins ; Titiiia perenapti inimi-
cus fuit eidem seepiua nen solum interminatus,
sed et inaidiatua est: cum deprebenderetor
iisdem kalendis in loco ccsdis cruentalus cum
gladio oraento, ad meosuram vulneris fiuito,
toto vultii expalhiit, interrogatus, nil respondit,
trepida fugit. Hie singula (says our author)
quidem ar^menta infirmiora sunt, nniverta
tamen oedis auctorem Titium evidenter design
nant." And I most heartily aj);ree with tha
doctrine, and shall leave it to the jury to judge,
how far the proof brought against the pannel
comes up tothisstandanl.
1 shall conclude with laying before the jury
'the words of a great jud^ and lawyer of our
own country, on an occasion somewhat siniUar
to this. It is part of my lord Cowper's speech
upon the bishop of Rochester's trial, where
the evidence depended on ctrcunistanoes, as U
does here. His lordship says, ^* The wisdom
and goodness of our Uw appears in aotbiaif
more remarkably, than in the perspicuity, cer-
tainty, and clearness of the evidence it requires
to fix a crime upon any man, whereby his life,
his liberty, or his property, can be concerned :
herein we glory and pride ourselves, simI are
justly the envy of all our neighbour nations.
Our law, in such cases, requires evidence so
clear and convincing, that every by-stander,
the instant he hears it, must be fully satisfied
of the truth (and certainty) of it. It admits of
no surmises, innuendoes, forced consequences,
or harsh constructions,* nor any thing else to
be offered as evidence, but what is real and
substantial, according to the rules of natural
justice and equity."f
These are my lord Cowper's words as we
have them given us.t (" It is very true, tlie
judgment of the House of Lords went against
his lordship's opinion in that question ; but I
must presume that the judgment of thai
august assembly, though against his opinion,
{iroceeded upon the principles established by
limself ; and though it had been otherwise, the
* Lord Bacon says, " Judges must beware
of bard constructions and stnuned iui'erences ;
for there is no worse torture than the torture of
laws." Fo. Edit. vol. 1, p. 440, 441.
f See New Pari. Hist. vol. 8, p. 338.
I *« Here the D of A said to Mr.
Macintosh : * But that opinion^ Sir, was over-
* ruled ;' to which Mr. Macintosh answered,
* It is very trae,my lord,' &c. as w the paren-
thesis.'* Supplement to the Trial of Js
SlewMrt
*l}
for Murder^
wmilil KtiU he, ^otHi^ as reaXMMiij^ is
1 niAjf ; iidopt what
MDfttMi'i > Mu Ihttt occa*
I, Wk Mlo«v*^ '■*' In th^ m^ below you, the
tm baill u^ioi) circumstitnces, au<l
llM»B«iv«Htl to b« tappnrteiil by other eircuin*
iM09i«t Uil all of tbem are to rctaote, so
I 1 mAy «Av 90 inoOeusive, that
•«it miiy hni tiere.*' 1 think the
chargetl against the paum-l
ftMt Ml may «m« lier«.
■y latiK I liftf iiartlofi for saying' so mucli ;
I liii^%4Mr |«»riuiiip&i%ill excuse it^ for tiie
niuai i fm*r •- ♦'■^ rntry. I «iUall only fur^
iImt «|i|| tbi' ' t is now on trial for his
Wit I iManr I n 1111:01 i^nre ; he pleads
\«t Gflilly i^ ' it is the ati-
■ffrr •! eT<t; a give bmi a
tCMd dttlmtwice 1 Aod tl he tails* jet it be as a
%o iHilice* to expiate fruilt^ an<l purge;
not as a victim to the bUoU
ftvjr «f hit cocmies, or tiie rage of the de-
crmmi^tfkuh^ to appear popular prejudices,
«r HHTfliMiiiii ckmour aud outcry.
5Ir. Frascr, against the Pannel*
Mj tiOfid J Ofldee- General ;— I appear at
far Mtm, Campbell of Gleoure, and
ebildreo, against Jaotes 8t ewarti
iIm fiiiKMel, accused as s^uiltVi actor, art
m liMc mttrder of Cotin Campbell of
If mBiitrder ag^gratated by itg being
1 ffmm a titatlcious hatred and resent*
Mr. Campbell, ou ac-
tlif l!bi' ( schars^e of bis duty id
kiaim^adlo bim by iiis majesty.
Tim orioKf my bird, im in itself so horrid^
n4 ha ^kmpftmnt inslaoce t« Htteoded with ag-
] ^rcoiOMancea of «ucb au extraordi-
Mry wMtum, aa must rouse the indignatioa of
crarv »f thy fiirQib«r of Bt>clety, and call
hiaAf §» ill* moat Bevero and exemplary pu-
liiteHil. Mordflr baa always been looked
m^ tdp IB* af the moat heinous crioiei ; but
kaO otiI^bmI cMwotries^ at all times, that base,
I species of tiMirdar, assaaaiiia-
M in still i?reac«ri as more de-
: — what than muat be the
•f ibat mao^s Squill, who deliberately,
il, in col4 blood f duno|f times of full
I HMt in tb« BDoat contemptuous desfiite of
coromits this most treacherous
I abbtirreii of all murders ! Heavy as
llfii laad isT Qtult is, 1 am mirry to say, my
M, H (Am with iu utmost weii^lit upon the
pMMiriioir bvfore you; which renders this
M of mat iai|iorUri< > ' inl,
bi of tull grcalM- to « »1.
lfaaBMMM,etpalila, ii> .v;;^" v*^uti
inali<:e con-
fa their btvts^ 1 . :.; u.>, lor days: if
mA mm MwfftmA te go tiapumtheil, who 01 us
4ii«slb« whaii&dividflul. hovv4:>v(>r inoooent,
iiwiv %€■«•« hiM^e?4 1 rlv iniiiled to
#• fMhHo ps«vltcti«ci 1 i 4, I hi«|ie, my
My wtt an Mil of grsAlifr itii|»ortaiice than th«
ii«.hi»bMb«1
A. D. 1752. [4S
aafffty of individuals, the interest, the hoaotit ]
of Uiis country is very nearly coDcerned^ uot to
suffer the most during aud hare^f^ced insult t# |
be offered lo his uiajvsty'a auth<j*ity and go* <
vernment ; aod offered «it a time wheu we, i^\
common with hi& majesty ^s other subjects, ana
reaping the fruits ot his mo^t lienign reigo : I
say, my lord, our interest, our bottour is cod* |
cerned, not to suffer this without endeavourtof j
to wipe off the stain from the country, to shei» ]
the king, and to shew the world, that this isJ
ilic bloody deed of one or two iiickcd and dea* [
perale men ; a deed which the country ahhorsiy '
and which it will not suffer tu go unpnoished.
The gentleman who opened the defence, my J
lord, has been (is good as his word, and ha9 I
given indeed a plausible accoiuit of this affair} ,
which mukes n»e think it necessary to lay be* '
fore the Court, as distinctly and aj» concisely afl |
I can, that Rtate of the facts which there is
greatest reason to believe the proof will ssi«
blish. And, in doing so, I hope to give yo^l
tord'ibips a more just view of this extraordinarj T
case ; and, at the same time, to be of some nm I
in lending the gentlemen of the jury to tboait]
parts of the proof wbicb deserve most their at* j
teiition.
Tlie pannel, James Stewart, my lord, is Iia4 ^
tural brother to Mr. Stewart of Ardshie), wbo J
Gominauded the men of Uxai name that wera]
engaged in the late rebellion, and, by means ofl
that, Ik; ac<iuired tlieir affections and attach* J
ment. When Ardshiel was obliged to laafil
the country, his brother (the pannel) set hiiii«>]
svlfatthe head of the family iolerest ; and i|]
not ap|teann|^ in tliat part of the world a forced 1
transition, he was ullowed to take this authority
upon him. in a short time, therefore, he cam«bl
to he a leading man, and to have the chief m^
fluence over the common people. Such, my I
lord, was the state of that corner of th« |
country in the year 174y» wbeu Mr. Campbell ^
of Oleiiure was appointed facir>r for his am^i
jesly upon the ««tate of Ai-dshiel, and
other forfeited estates in that neighbourhood! j
James Stewart soon foresaw how much thia
^ctory must interfere with the plan which ha
had laid, aiul with the interest which ha
wanted 10 eslablisb ; Glenure, the re tore, very I
early became the ot^ect of his ill- will* But it |
did not lonsr rest there; for in the year 175li
Glenure having^, in consenueucc of ortlers ^
from the barons of exchequer, caused Mn
Stewart tu be removed from the farm which ha i
poiseseed unon the Ardshiel ei^ale, what wn§ |
before but ill-will, was now turned into hatrnl
aud resentment. This led him lo oppoea all |
Glenure's measures, and particiilairly Ui f4ay |
the volunteer in the service of b4i
tenants upon the saioe estalai whew
was about to remove at tha QOaain^ lemv^J
for this [impose, he tfcpaired in person to
lulinburKh, and, in name af Ibose teoanU, |
thotH?h without the smallest eomaiiision or ai>*
ihority from them, made be prcaeitted to th«
larda of session, a bill of sospension of Ihe in. \
teniled removal, and oblaified a silt af <
43] 25 GEOEGE II.
Imb; this list he prcrailed ofOB the
iotioMte 10 deaare, who wat pot to the trooble
aod eipeooe of a jooniey to Edinborgb, be-
ibre be ooold hate tbe gfomidleM bill of too-
pentioo OMwered ; wbwb was indeed all that
waa aeceaiiry m order to make it be refosed.
Mr. Stewart, mj lord, little aatisfied with
tbia mMocoeatfal attetDpt, which ooofinned
Gteonre'a iofloenee at the expeooe of hia own,
and finding himself forced to quit the eoimtry,
and to abflAdon his fa? oorite plan of popabuity,
formed a most desperate scheme of rerenge,
IH> less than a plot to take awav the life of
Glenare in the basest manner. In punuaDce
of this scheme, be was at pains, over all tbe
eomitry, to represent 61enure*s conduct in tbe
most disadvantageous light; and, when he
thought there was a geiml odium raised, he
had recourse, in a more particular manner,
to those in whom he could most certainly con-
fide, to those who were most easy to be stirred
up, and most inclined to any desperate deed.*
Iiifierent sets of such men, my lord, he as-
sembled at different tiroes, and, after expa-
tiating against Glenure's ill conduct, be used
all his art to convince them, that it was their
duty to free the country of what he was pleased
to call Glenure's oppression ; telling tbem, that
be bad once seen commoners in Appin, who
would, long ere then, have stopped bis career ;
and that he could assure any of tbem, who was
hardy enough to undertake it, a certain escape
to France, and a handsome pension aftenvanb !
By those methods, my lord, Mr. Stewart used
Ins utmost endeavours to stir up some hot-
heade«l ruffian to tbe execution of hia plot!
but his endeavours were long used in vain, till
at length Allan Breck Stewart was thrown in
his way, a man marked out for such a pur-
pose ; a deserter from our service to that of
tbe Frepcb ; one who, in both countries, was a
man of des|ierate fortune, but who, in this, bad
not only lost all title to the protectiou of the
law, but was become obnoxious to its severest
penalties. This man James Stewart imme-
diately laid hold of and cherished. It was
easy to atir him up to reaentment. To him
therefore he communicated tbe whole of his
design, ai»d with him he concerted the execu-
tion of it. Allan had nothing to lose ; there-
fore it was determined he should be the actor,
whilst James should lie by to protect him, and
to turn the mischief as much as possible to his
own advantage. Happily, my lord, keenness
and resentment, as usual in crimes, got here
the better of caution, not only with Allan, but
even with the more aagacious Jamea ; for, in
tbe midst of their moat cunning contrivances,
they could not refrain from uttering such
atrong and particular threata against Glenure,
as immediately pointed them out for tbe objects
* This I ooqjecture to be the passage re*
ferred to in the observations aubioined to the
tl'a dyfaig deolarationa in the * Supple-
tft the Trial of Jamea Stewart,* and in-
Mrttd at thi end ofthif CMS.
Trio! ofJamet Siewart,
[14
\\ soapicioB. Both of them have many
times threatened him with death, and both of
tbem have even gone beyond general lenns;
for Allan declared be ww'tUi, on tb* nn»t occa-
aioD, shoot him as be wooki a b ack cock ; an
expressioo very apphcable to the tiase manner
which he afterwards made use of: and Jaaiea,
still more inveterate, swore, in tbetiillness of his
heart, that be woold shoot Glenure, even if he
himaelf was so disabled, aa to be obliged to go
upon bi.s knees to a window in order to do it.
These are instances of the threata which they
made use of, which first pointed them out, and
which miist still go a great way in convincing
every thinking n»an tluit they, and they only,
were bis murderers.
In cons4:qiienoe of the last resolutioo, that
should act whilst James stood at the
helm, Allan hud himaelf out to ^ei particu-
lar information of Glenure^s motions; and,
for that piirpoae he contrived to make a Tisit at
Faanacloicb, tbe very next house to Glenure,
and within a mile of it ; there be remained
upon the look-out till Monday the llth, when
Glenure set out from his own house fur Fort-
William. Upon which Allan immediately re-
paired to his associate James to communicate
the intelligence he had got, vis. That Glenare
was gone to Locbaber ; that he was resolved to
persist in removing the tenants of Ardshiel, and
was certainly to return for that purpose before
the term-day, the 15th. Having upon this in-
formation cooaolted together, and aettled the
plan of operations, tbe pannel furnished hia
friend with a dress more proper for what he
was going about, giving him a suit of his own -
clothes, a black short coat, trousers, and a blue
bonnet ; and thus equip|ied, beset out the next
momiug, Tuesday tbe 12tb ; but, knowing that
Glenure might possibly not return for a day or
two, in order to avoid suspicion, he made a tour
among his relations, going first to Balladieliah,
from thence to Glenco, from thence to Callart,
where he staid Tuesday night, and on Wednes-
day tbe 13th he went Inch, by tbe same route,
to Ballacb^lish ; in all which circuit, be waa
at hand to lay wait for Glenure, at whatever
time he should return from Locbaber. On
Thursday the 14tb, when there was a moral
certainty that Glenure would return, (be ' hav-
ing appointed a meeting with several gentle-
men in the country of Appin that evening) Allan
left Ballachelish's house under pretence of
fishing, and, very soon afler, appeared at the
ferry of Ballachelish, by which Glenure roust
necessarily pass, in his way from Locbaber to
Appin : there be met tbe ferry *man, and, hasti-
ly calling him aside, inquired, with more
tha6 ordmary earnestness and anxiety* if
Glenure had passed there that day ; and, being
answered that be had not, Allan immediately
* It is observed in the * Supplement,' that
the expresoiona * hastily, more than ordinary
• earnestness and anxiety,' are not supported by
the evulenoe of the ferrvman. See in the proof
the depoaitioa of Archibald Mao timet.
45J
Jut Munler.
As D. list.
US
mi 9f tli# \Mf Unmrdi tlie faigli grounds
•Jbof t ill* honm ; from whence bt hail a view of
lb*eooiiiry «fiMin<f, t\n boih siiks of the Loch,
' % mil fuavi^v into the wood of Letter-
In tilts wo<kI, inv lord, it was, ihat be
loot n irui a iH out r station for the exe-
coiiMi of ^ :ii ; n Httle thicket,
Mti*tiiiii|f ^ ' 1 few paces of the
kaffc»wijr« ^^mns *»ii*ch every traTelter must
mtammmf mi» ; from whence, himself un-
wnm^ lie «»itld diitinctly see the road leadiuoj to
ib^lffrrj of BalUHielii^h on the Lochaber side,
md lb* ro«4 oo the Appin sidt% leading from
i 10 Ibt wood of Letter 0)0 re* Here, my
, hm posted himself with uoe or two londed
pffitMpii for the purpose ; and here he
i mtit im Mr. Campbell of Glenure had
t tlie §Knjf and was riding along the road
jCli Ike wood. It MAS then, my lord, that
I bffvdt snztU I his lon^ wished- for oppor-
wul wlitrri Gl^'imre was come within
ttMifdwetit diuanee, iU\% ahaDdoned assassin
•boi bafn dfsd tiith to^o balh} from behind : a
fMOHtsrtlty, US it was hiirbartius and in>
i! m di«i of which there ii$ hardly an
Bplettt titis part of the kingdom, whose in*
mti, li»wi*Tef rasli they may be to brave
dsoffffY io 4n open manner, have never, till
' I cnuie of their unworthy country-
braoded witii the ignominy of base
ranllY ■Miiflitistion !
\ iMf iOf^ tbtis exccuteif his deadly pur-
I ifOOMdist^ly dtsappearrd, in order to he-
'* lo the concealment provided for
■lliii^ m hts way, afipra liidden manner,
aairfnii^ht, at Ok'nco']) house, where he
III* Isdy and hi r uon that Gleuure
Pll mor^rrr.^ z^nA, w iilmrn any more conver-
•*■•• ^^ an a consequence
«f •Iwi >, that he himself
ii«Wi4^1y to Wiive th« country. Soon
ft, br arrWr^l st his alio* red retreat, the
fwf K ao, thehabilation of the
ti • converiiai Ion which
It and lli« b<ntiii i ! ! "d of the
' m m mmv than he
fto luijj titnirn- njr, rnier faintly
^ I dmjriii;^ Itts own couccro in it, he told
lis iniBd tbat bo was sure the family of Ard>
iMiiwoSd lie Riiii|irctiHl, |uirticularly James
^twifl oad Kl^ ^nn Alhn : nsln;^ thiMtemark-
■•e #spr««^ XT oil Id be no fear
•^ •b«» if I MPS did not betray
(^•^ t*j|hec:i /s», wiir% he feared, was
^■soMNi-tii < 10 Ju« fniher.
Alltliip wbtlttf uiy lord, the punnel remained
it knsio tiiMlMitfrb<»d ; and whvn the accounts
•*■# 9/f Gh ' " I and every body
Hsimlbv i»* 18 hoBtcnin^ to |jfo
lilMdt oftn iIh* rnr|»*t , rir rtf v«»r "ffc red to *tir,
ii|, be wiMild not sutfi^r any one ut ht^ fiimily
lifooe*rit ^^' - -■ ' ' V ! mher thing's
it wjadi !>' "red, but the
■Ml^viniii.i , viof bisatten-
lvwib^mtr v«o closely Itukeit
■*i^ 4llia i/' * re wns a Jiccesfiity
^ Aiks*ft Immg kept oui of the way at any
Ik
rate ; James therefore immediately dispatdied
Alexander Stewart nackman, his relation, and
a person in whoin ne had entire confidence, t^]
Fort- William, with a most pressing demand, |
as he himself acknowledges, for money to sun- '
ply his friend Allan, and to enable him to make*]
I lis escape from Justice ; and when the pack- f
man returned with a less sum than was ex- !
pected, James, in the most critical juncture of I
ills own affairs^ added two-thirds of the money
which he had for his own support to the sum'
brou{^ht from Fort- William, and sent away tht
faithful nacknian, with ibis money, and hia..
French clothes, to Allan Breck, givini^f particu* I
hr directions with regfard to the place of bie>^
concealment ; a circumstance no one can well \
be supposed to have known who was not in th«H
secret, who was not originally privy to Ujoh
orime for which he was obliged to have recours0»l
to that cotieealment. i
These, my lord, are the facts which, I ha?«'
reason tobi^lieve, will sooo be proved to your |
lordship, The {iTentleman bas been pleased t0
express bis surprise, that, alVerso strict au en*
quiry, this should be all that is made appear; |
and to say thai these facts are trivial, and*
not relevant to infer the crime ; but 1 cannol <
think any impartial man wbo bas read tbe^
-ndictment now in my band, will join intb«>J
^fftitleman's surprize; on the contrary, Ibe*^
reve every such person roust join with me, ia«
thinking no small praise due to the very pro-
per encouragement and assistance of the crown,
and to the very uncommon diligence and .
activity of the private prosecutors, which to*
g'etber have been able to throw so much lij^hl'
upon so dark a tbCene, Your lordship has beeti'|
told, that the tact!) menttoacd are not sufficient «
to infer the crime libelled. I need hardly ob-
serve, my lord, that such crimes are particular! j ^
villainous and destructive, fronk the hidden and <
concealed manner in whichthey arecommitted, J
which allows of no defence, and too often |
screens from punishment: their very oatumfl
does not admit of such a proof as may be eic« j
pected in other cases ; a proof by circumstanoesl
is all that can be looked for; Indeed, wheiif
that is conclusive, it is of all others the most ^
convincing. Witnesse« may be prtlai, tliejfi
may be perjured ; but a closely connected -
chain of circumstances is liable to uoneof thosftH
objections, ^^w, my lord, I humbly appro* ^
beod, no chain of circumstances can be stronger J
Dor more closely connected, than that whtcb 1 J
have just bid before your lordship. You se# j
a discontent rationally, nay probably accounted |
for ; the strongest and most particular tbre^ti |
following that discontent, and the eommiisar"
of iht' crime as immediately fbltowing tbe
threats ; the clearest instance of the ** maluati
'* mioatum, et damnum secutum.'' But i||
does not rest here ; vou see, my lord, the mur- ^
derer traced from Jay to day, Irom bourt^j
hour, from place to plare, to the very day, th«l
very hour, almost to ihe very spot Id which th^J
tnnrder was committed ; and you see his aa*
sociate b the itiiGteit conoezion and taUnaacy
47]
25 GEORQE II.
Trial of James Stewart f
[48
wiHb huBy cabelliDg^ in private, audi farnishin^
bun with a proper drefs, before the murder, and,
after it, famisbiDgf him with dotbei and money,
to enable him to fly from justice; and what
deser? es particular attention, von see his asso-
ciate minntely acquainted with the place of his
concealment, the pbce preiiously pointed out
for his retreat, and the murderer, m that retreat
where be thought himself in safety, expressing
his concern for his friend in ? ery remarkable
terods, in terms which carry a strong oouTio-
tion of their ffuilty conspiracy, bat, at the same
time, sh«{W the cunning with which they were
conscious of hating contrived it I cannot
doubt, but your lordship will think this a chain
of circumstances, more than sufficient to infer
the crime libelled : at the same time, I must
beg leave to observe, that, in such an indictment
as this, there was no necessity of mentioning
any one circumstance ; it would have been
•nmcient in law, and the gentlemen acknow-
ledge it, to have libelled art and part in seneral
terms ; that is, that time and place libelled, the
crime was committed, and that the pannel was
guilty art or part of that crime. Now, if my
lord advocate, from the humanity of his dispo-
sition, from a desire that every offender, how-
ever heinous his offence, should have the fairest
trial, and every opportunit;jr of making his de-
fence ; if, from these motives, he has given a
very long and particular indictment, when onl^
a very short and general one was necessary, it
is somewhat invidious in the gentlemen or the
other side, to turn this into an obieetion to the
relevancy. But let them, my lord ; the point is
fixed, as well by law, as by uniform practice ;
and therefore, whilst we contend that the cir-
cumstances, as particularized in the indictment,
are fully reh*vant, we at the same time hum-
bly hope from your lordship an interiocutor
upon the general point of art and part, indepen-
dent of these circumstances.
It has been objected to this indictment, that
an accessary is here brought to trial before the
principal is convicted, which is attended with
these bad consequences ; that proof must be
led against the principal in absence ; that his
greatest enemies may be produced as witnesses,
and the proper exculpatory defences mar be
omitted. And further your lordship has been
told, that this is contrary to the laws of neigh-
bouring nations, particularly that of England,
and contrarjT to the law of Scotland, as handed
down to OS in the books of lieg. Maj. Quon.
Attach. Stat. Dav. 2, and sir George Macken-
zie. There might, my lord, have heen some
room for such an objection, if no former notice
bad been taken of the principal ; but f can hard-
ly think any objectioa will be ailmitted in the
present case ; when the principal is indicted,
wlien every legal step is taken by the prosecu •
tore for bringing him to jaskioe, and when the
only conviction which oar law admits of in
aoeti cases, is gone against him. The incon-
tcttieocea whicli it was said might folk>w from
Ika present practice, are ftrifling, compared t»
quence, if the laws altowed not an accessary
to he tried, whilst the principal, conscious of hui
own guilt, dared not to appear. It is but find-
ing out some desperate fellow for the execution
who can afterwards be easily kept out of the
wa^r ; and the most inhuman acts mnstgo un*
punished, the most abandoned villains may
iaiigh at justice. The authorities produced in
point of Uw are, no doubt, great ; but times
and circttOEKtances derogate from the greatest
authorities. If what sir George Mackenzie
has given us as his opinion was once law, it is
beyond all doubt, bjjf later practice, no longer
held as such ; and it signifies as little what is
the law of neiffhbooring nations, as what was
once our own Taw, if custom, the justest of all
legislators, directed by common sense and
equity, has now enacted the contrary.*
The hardships, my lord, which it is pretend-
ed the pannel underwent, can never be admit-
ted as objections to this indictment. That they
may not, however, leave any impression upon
the gentlemen of the jury, or even upon this
audience, I shall give your lordships the true
account of what are called hardships ; and
they will no longer appear to be such. That
upon which most stress seems to be laid is,
that the pannePs wife and his children, who, by
law, cannot be called as witnesses against him,
have been precognooced, or judicially examined,
and that their declarations are proposed to be
produced in this trial. The fact is true ; and
nothing is more easily accounted for. When
this murder was committed, all was confusion
and ignorauce ; and every method that could
be imagined was found necessary, in order to
get to the bottom of the deep-laid plot. It
was at that time that James Stewart's family,
in common with aH in that neighbourhood,
were called before a judge, and examined upon
what they knew of Glenure's murder : it was
more than probable, that some one of that
country committed the murder, and that many
in that country were in the .secret of it : but
when these people were examined, neither of
these acts of guilt was charged upon any par-
ticular person : Allan Breck was not then ac-
cused of the actual murder, nor James Stewart
of being accessary to it. So that his wife aud
chiMren were really not examined with any
view to him ; they were examined, to discover
the truth in general, before it was known upon
what particular |ierson the accusation would
fall. iVhether their declarations will be pro-
duced in this trial, may be a question after-
wards ; but, in the mean while, it appears not
contrary to law or equity, that they should be .
produced : it is confounding things to say that
this is making the fianners wiiie and childrea
witnesses against him : the declarations will
not he produced to prove the truth of any
thing contained in them, of which they would
* As to proceeding ag^ainst an accessary
without a previous conviction of the principal^
sec Bomet on the Criminal Law of sootlaodv
14, pp. S88| et ieq*
49J '^^mr for Murder
Ml I0 lifil itidanec ; ih«y Ar« only to prove,
llifll 1^ Mrvofit i«bo emitted the clccUmtions,
ihmw thtng% ; «ad if nay words of
4 ^yft efttiie of tuspicioti o^amst the
Wmtii b* Mtrefy competeut to prore
A,D, 1752.
[SOj
itil
> Mr the ttttiomny of third partief^,
liliROltbfts liom^ u\ut\gtiUer ia the came
•0 fuote lli«fii by iiroductioD nf tUe
IhiOiaelw judicially committed to
ff Tb« dose eon fiti«no eat of the panned
I m» UUl of fiotiie others, who were then
» op tIpAQ suspiciou of guilty but are noiv
It Ift pt«'liiOfttJ «t %rilnes«e», was owing to the
mhM •f lilt p)a€« where I hey were confined.
Uia OMJotj** grai ' ive been used Jis
ammt oMire for 'v of state prisoners
l«f«QiDHMMl crutiMi»r> : U is DOt fO he W«Ul-
la thca, if military otfieers* unacqubiut-
Uk diJimcliuas of btr, apphed lo the
M M4fr« wbkb they were iu use to re-
I fir ll* former: on smun as the law was
feuwi* il was obcyt'd ; nor 19 it pretended,
|ii#|iMiHd, or aoy oilier, was closely coti-
9tm kmu oArr the couttiianding oliicer
lliat Iho law forbade it. It 11
V«e, m Bpw camamdiag officer came, to whom
1^ bw was DQI IniDQilialely explained, whicii
ImI tlie MCQiid close coutiaemtnt coin-
«f ; Int be, aa well as hiii predecesstjr,
<iirng> III the iaw^ an 10011 aa it was
iiMnaii to biin. That it was not there-
ksovti tA both, us »r»on as niitfbt
fHUiod's coufuiel must account
ThM tl urai altogether their buiiiieHs ^
I lii^ oaM^qnence, whaterer it be, which
t tfl^cn tile neg-lect of it^ ous^ht oot (o
I ilie pmaecutars, far lesa upon thu
t of the anny, who the panncl him-
•iiwlc4|tfa( bate alt, m any charge
r bad oi bim, done tbeir duty with the ut'
Dity, alwaya like noldiers, aiitl
It 11 vurpnainff, the gentlemen
I mmoAiim^ as u hardabm, their being re-
\ 10 the (lannel, after they came to
f ; Ib^ wiiat he conacious that this waa
of not 00 bourns duration. They
UnilUiiiea ttom the chief riia|pi»trute,
l4o mm ouin^, oa ibe iliko of Argyll was
ipol, to take any step without his
ipfrabatiiiHt acnt diri^ctly to ari|ndtQt
Iff ifctfliamftnd : aiui Wt^ t'ruce ifuve tinme-
ihto fli^lvrv f ' Thegrntle-
Mn whm aft' 1 one thing,
•lidb, I mkm |b *ay, b« nhme tiill think a
lanMifp itM ibit paonei ; I meaa^ my lord,
ia Weiam falbm to that geinleanan'a ahare to
^«i K;« 4^fiMKe ; and I caooot belp tbtoking
•tiliiiQf tB wiltiene* ariauig from
4.o%iup toibr 7 : ^ M€t Hame'a Com-
«, TrUI i N ToL «, c. 13,
p. tM TIhimmU. *'. i.^n ' Bupptemeot* ob-
'* By la» adii praoioB ilie deelaftpta
ittM f^ut t.c- hrongbi OS witnewei
I ibo pftosel r tekntioos were
rooO ;,it^U; antat incvii*
HytolMf tfurv.'
fOL XIX
the complaint of the panners want of able itt4^
sastance, coming from that side to this, look]
Itke banter: for, setting aside my lord advocate,
who^ office ohligea him to assist tite pros&«l
cutor^ ; 1 need only beg your lordship will caul;,]
your eye first to Uie one side of this Uhle, ntMl|
then to the other, in order to judge where tlu
advantage lies in age and eKperieocc.
Upon the uhole^ my lord, 1 cuiiuot doubt 1
but yonr lordship will find this libel relevant mi
iDJer the moHt severe pains of law, at tbft]
crime tihf lied is of tb^ most heinous nature {1
aod that you will remit the pannel to the know- 1
ledge of an assisse, who, 1 find from the list iit |
'my hand, must be men above the imputation j
of any other prejudice, but whut every gooj (
man must feel against so honid a crime ; n j
prpjudicp, which, 1 am sure, tliey will carefully j
distiuguish, as 1 hofie ne all do, from any per* j
tonal prejudice against the nannci, who has an I
undoubted right to demand their most impar*
tial attention to the proof, by which alone hit 1
inucH!euce miuit stand confessed, or bis guiJi j
meet with its deserved puoishment.
Mr. Enkinc^ against the paoneT.
My lords ; I have likewise the honour to h#']
of counsel for the prosecutors on this trial, a«i4i
as such it is my duty to sun^jort tlie cbargp^l
exhibited in the hhel ; whicti has been just]
now very fully and distinctly openi'd. • ]
7*he importance of the irial, the respect I
have for the hunouriihle court and this audi?-
ence, were alooe atifficient to have laid mt I
under great unenftlieei: hut thiit unei^siueaa j
is greatly increnaed, wbeti I find myself eii- ]
gaged in a task, which I am at present but ill
prepared to execute.
Though 1 early and willin^rly engaged tt \
take a part in this trial, an unexpected distress,*
which has, for some days, dissipated my al^^
tenlioo to business, made me bojie the proae* ,
cutors would have relieved me of an engage^
ment which 1 was unlit to perfonn^ and dis*
peused with my attendaucc, which, I uppre*
bended, could not be material Lo them; but
in this I have be?n diHappiuted by the tudis*
po<>itton of a gentleman of great abilities and
experience, which has unhappily deprive^
them of his abler assistance.
For this reason I will beg leave to confine
myself entirely to make the proper answers t^
the arguments which have been urged by the |
leemod eeotlemen in defence of the prii^oner,
I tlitir forbear lo enlarge upon the mauy 4
aggravating circumstances that appear in the
horrid scene just now opened to your lordf
sbtpf.
1 will Dot attempt to iofiame the [ury, by
f^ivipg bote reins to an imagination, warmeil
by a reii regtrd for the gentleman decea%ed|
compessioo for the widow and the fatbedcssp
under p^'culiar circuiaetABoee of distress, p
high concern for the inlereel of tbis country,
and the prvservation of our prraout happy cori'
aiitntion ; all which appear to have been struck
»t hy the baud that gaveibia wound,
E
51] 25 GEORGE IL
Tliete consideretions cannot fail to kindle
indig^iiation in erery breast; and I ana confi-
dent tliey have already had the effect to rouze
the atteniiiin of the Conrt, and balance a roit-
placed compassion, not unnatural to hnmane
minds, which sometimes blunts even the sword
of justice : but the prosecutors do not ejrpect
to obtain a judgment against the prisoner in
this court, upon anj other foundation than a
real conviction of his guilt, arising from evi-
dence clear, unexceptionable, and agreeable to
the laws of this country.
The laws of this country are favonraUe,
particularly favourable to persons under trial
for their life ; and the prosecutors are willing
to allow the prisoner tne full benefit of every
advantage that these laws, or the practice of
the court, can give him a title to.
This being the case, 1 cannot omit observing
how improperly the prisoner has rested the
greatest weicht of his defence upon clamorous
assertions of unfair advantages, and unlawful
oppression upon the part of tlie prosecutors.
For, Imo, Though they were founded on
truth, they would not amount to a defence
against the libel : one crime cannot compen-
■ate another, nor an injury received from the
prosecutor wipe away the guilt of the pri-
soner.
But, 2do, These are measures so inconsis-
tent with that glorious spirit of liberty that
rei^s even among the rulers in this age and
nation, so inconsistent with the known mild-
ness and clemency of his majesty's govern-
ment, and the unfortunate circumstances of
the privato prosecutors in this trial, that I can
hardly persuade myself it would be necessary
to make a more particular answer to these com-
plaints.
Nevertheless, as f am^nsible that nothing
is more inseparable fVom noble and generous
minds, than a desire to throw every atom into
the balance on the side of the distressed, while
there remains a possibility of their innocence;
and that a simple suspicion that the prisoner
had suffered any unnecessary hardship, or been
deprived of anj means of defending himself,
might avail htm more in the event "bf this
trial, than the best defence in the mouth of the
ablest advocate; for that reason, I will beg
leave, in a few words, to shew the Court what
foundation there is for auch complaints.
The first was, that the prosecutors had de-
prived him of the benefit of counsel, by re-
taining roost of the ablest lawyers at the bar.
To this I can make no stron|;er answer,
ihan what the Court has just now heard from
the very gentlemen who make the complaint,
and win be confirmed by these who are to sup-
port them. I am confident they will convince
the Court, and all who hear them, of the ab-
surdity of such a complaint, when urged by
four gentlemen of such abilities.
In the second place, it has been laid, that
the«prisoner bad been deprived of hia KbeKy,
sind kept in close confinement contrary to law,
4lebarred -the coD?«iMtian of his hiuHj end
4 . -
Trial of James Siewartf
£52
friends, and denied access to speak eitber to his
agents or witnesses.
To all which it may be answered in the ge*
ncrat, that the laws of every well-governed
realm certainly allow the confinement of p^-
sons charged with capital offences, in such
manner as they may be secured, till they can
be brought to trial. That no limitatran of this
rule has been introduced, either by law or prac-
tice, in Scotland, other than what is contained
in that valuable and salutary statute of pari.
1, sess. 9, of king William, for preventing
wrongous imprisonment.* No part of which
has been infnnged in the present case. That
the prisoner has been, since he came to thu
pUce, strictly confined, cannot appear unrea-
sonable or oppressive to those who know that
of late, in apite of the vigilance of the ma-
gistrates, several criminals have escaped from
their gaol, whose cases were less desperate
than his, and who had no formidable tribe of
friends or accomplices to assist their escape.
It will not appear surprising or unjust, that
the magistrates were cautious to give access to
any persons, under the colour of their being
agents or witnesses, without a proper warrant,
when it appears from the proof to be brought
in the trial, that, during the prisoner's confine-
ment in the garrison at Fort-SVilliam, he found
means to tamper with the principal evidences,
(though also in custody, in order to prevent
such undue influence) Iry emissaries, who
carried repeated messages m his name.
This, I think, might likewise appear to be •
* A late writer on Scots law, Mr. Burnett,
(Treatise on various branches of the Criminal
Law of Scotland, chap. 16) gives an abstract
of the enactments of this statute ; and after
contrasting its provisions, imrticiilarly those
concerning bail, with those of the Habeas Cor-
pus Act (Stat. 31 Car. 9), proceeds, ** When
m addition to all this it is considered that the
act 1701 provides most effectually for a due
and regular commitment in order to trial, that
the f>enaltv on a judge for a breach of the sta-
tute is both higher and more precise, and the
period fixed for commencing and carrying^
through the trial more determinate, it may
justly be considered as more favourable to the
sutject than the boasted Habeas Corpus Act of
England, notwithstanding one summary ap-
plication for lilieration may not in every caae
afford so speedy a remetly as the proceedings
under the writ of Habeas Corpus."
In the same chapter, however, he notices
that Ihis same act of 1701, " has been called
the worst penned and the most obscure act in
our statute book, and some have even gone so
far as to maintain, that it was purposely made
obscure."
So in tlie case of Andrew against Murdochs
June 1806 (reported in the Appendix to Bur-
nett, N"* XVI) Hope, lord justice-clerk, said,
" Onr act ITOl is greatlv more lavourabe to
the liberty of the subfcct m every respect thui
the UabeM Corpus Act of EngltMl/'
B)
fat Murder*
A. D. 1752.
[54
WD fbr the officer eoniroa tiding at
kWiiiftm* to be particularly careful to in*
id prereiit these iiracticen, by denying
tbe pertous by wbate means ibey
I koOWB io be cmriefl on.
^fi«i, ti Ibe firisODrr's complaiot lias been
%mi ^po Mm b««ttd, t inust heg leave to recal
war tlie far
4mm0mmut
I JoiUce
pa and the jury to
t which the accet-
, . 'f '^1 he supplying
Willi moti ȣe him to fly
: Irt it l^ ; Sored in what
'I'CUted i Ihe pri^ner was io-
liicer Gommandini? the party
aimtli^i<i«d biui, to spi^tik >%uh hh m ife
l« Mora b# wa« earrirU ofT: <he use he
: «f tliai indulgence, wait to j^^ive her the
|k«rf of tile money in his pockety vi'itli
1 t(i send it, and the tiiorderer's
itie place where it liad been con-
i h% whmdd wait for ihem.
Tbt lalol^«»ce upon the part of the ofTicer
«M a«lMv»l Mil bitinune; from the circum-
ittoorei tiMl were then kuowo, there \*&& no
rwMa In fttmuect ihut mjcU use would have
IvfMonds'^i G<h1's good providence
li MlB.'C»i»e fl drcumstanee in the io-
teili[|AMi ot iktte fcutirce of the horrid scene of
'mimmf Mwr« the Cuurt.
Nov, ■• ibi« tkct xa adrnilted to he true, I
ttOM wmh$mt wbat fuundatinn there is to coin-
filaii ^ I r the commanding-
•fi^ir I such indulj^tuceSf
llogiv uuin!vutr<i .u:i;»^^?i to his family und re-
I? Neterthrle*^, I am well authorised lo
f, ibalf al Follow ilTiam, the prisoner had
hiiy ftnd KTemt iudul^^ences of this kind ; that
lie was ailwwed to take the nir in the |j;arrisao,
aftd lo <iii«ftff*i» with his friendfi and relations
' 118 wii cunhiHteut with the safe
f if bis person, and the iuipniies which
■ Cftrrying on hy the proper officers ;
btfiire and since he was brought to
Miiipteet, bb Oi^nl and lawyers have had ao*
imkt wiUi him as often as applied for in a
' wty* He wos not indeed allowed access
»• M kii servants and dependiintii, Irom
irboB mterial etideuce wns cxpnted, with
wksn bt bail baeo uttipcring^f and who hud
Mbrad, l^brv irere over-awc<l by his au-
bul m tbil I apprehend noVuulugy is
I place. Yr»ui- lorrlshiits hnve heard
I frmm t r, of un-
an« il I .(luce his
* I v> and tu prepossess the
»t his g:uilt»by which he
b aid io Lc, m m>uic mcasurei condemned
Irfsta be m brtiu^ht tu trinL
l»ttsi biy MH and the jury to
^■»4ec lb** of I he prosrcuton
wbt iflw iibii }Mac:tices. Has
I is DO relaiinn,
* a- It Ui is corner of the
1 in prepossessint^
' cii«attrjr - •-. ^„ .., .i^j of the prisoner*!
Sf nff aft hti Cbihlr«o, as yet uucapable
Af speech, fit to assist her in traducitigf bis cha«
racter?
If the relations of the deceased had attempt-
ed! it without foundation, they would haV9
Ifained no credit with the impartial world ; or
would have been counterbalanced by the nu-
merous relations of the prisoner, at least m this
country. Nerertbcless, ray lords, J will atlmjt
thai he labours under great disadrantag^es upon
thi2i head; a general opinion of his t^uilt hua
prevailed ; ait<l I am sorry to say^ that he haa
many and siroog^ adversaries, who have beei^
busy to establish it. *^ Mag^na est Veritas, ct
pr<cvalebit." The horror of the crime witli
nhtch he is charged, has raised the attention of
every impartial person, and made them tn«
dustrious to discover the authors of it.
The blood of the innocent has called aloud to
heaven for justice; and» by a remarkable con-
currence of many circumstances, hrout^ht t(»
light by the decls rat ions of a cloud of u iinesses^
the prisoner is clearly pointed out, not indeed
as the executioner, but the contriver of tha
murder^ and the aiJer and abettor of the mur-
derer.
I will not say, that his character iu private
hfe concurs against him ; 1 have no auihoniy
from my employers to assert it j nor will 1 as-
sert what is not supported by evidence^ But C
must say, that his family and connections, bis
character and conduct lu public life, are so
many circumstances forming a presumption al-
iDOht et|ual to a proof, in support of the charge
bruught agiiinsl him. These are the mosi
powerful adversaries he has to struggle wiih,
and from them that general opinion of bis guilt
has taken its rise, which is unjusUy ascribed to
the prosecutors.
What haii been said, my lords, would natu-
rally lead me, in the (text place, to lay open, tu
the consideration of the Court, the particular
circumstances set forth in ihe>tibel, fnm whicb
the prisnner^s guilt is inferred ; and to Inke no*
tice of what has be^n said in his defence upon
that head ; but in this 1 have been well pre-
vented by the gentleman who s|M)ke last; and
therefore I shall ouly beg leave to add a few
observations to what has been said by him.
The Court has been informal that Ulr.
Campbe'l of Gl enure was appointed factor on
the forfeited estate of Ardshiel; that the pri*
soner is natural brotlier to the forfeiting persnn,
in whose absence he fell lo have the leading of ^
his dependents, and the protection of hi* '
family: under that character, as he had an
interest, lo be had opportunities of npjKMiti^
tbe factor in the execution of his office: that
this opposition grew by degrees to the height
of premediroted malice, which rood after broke
out in repeated threatening, and at last eaded
in assa>i«i tuition and murder.
On the uther hand, the counsel for the pri-
soner have iisserled, that there was no enmity
or malice between Cjlenure and hira \ but con-
trary-wise, a conlidence and friendship^ whicli
they offer to support by letters written by Gle*
DUrV to bito. ^ow, aa ibia mtiit ap^aaf la km
S5]
25 GEORGE II.
Trial of James Siemrt,
[56
incoDtiitent with Ibe charge io the libel, I muftt
beff le&ve, in a few words, to reconcile them.
When Glenure was appointed faelor on the
•state ofArdshiel, he was so far from shewing^
80 J disposition to be ser ere upon the tenants,
or 10 put hardships on the family and fiiends «f
the forfeiting person, that he treated them with
the utmost humanity : and the prisoner in par-
ticular had the address to insinuate himself so
fsr into bis confidence, as to be employed in
eollectiDg the rents, and advised with in the
lettingr of the farms ; and, during' this period,
the leltera referred to were written. But as
the prisoner undoubtedly took advantage of this
conndence, to bring tenants into the estate that
were entirely under his influence, and to make
separate agreements with them in favoorof the
forfeited person and his family, in defraud of
his majesty and the public ; the barons of ex-
chequer justly took exception against this part
of Glenure's conduct; and, to prevent such
abuses for the future, gave him particular in-
structions in writing, to remove the prisoner
from a beneficial farm which he possessed, and
also any other of the tenants wlio were con-
nected with, or under the influence of, the for-
feiting person and his family.
These instructions were executed in part at
Whitsundav 1751, ^by the removal of the pri-
soner from his farm ; but as he easily procured
another in the neighbourhood, and retained his
influence over the estate by the means of the
tenants he had placed there, he discovered no
resentment at that time.
But so soon as the factor, in the further exe-
cution of his instructions, began to take the
proper measures for removing, st Whitsunday
1753, some of these tenants, he then took the
alarm : that was to pluck up his interest by
the root, and entirely to put an end to his influ-
ence. He therefore made the cause of the
tenants his own, and every method of opposi-
twn was tried to prevent their removsl.
fle no longer affected any intimacy or friend-
ship with Glenure, but took every occasion to
raise discontent and jealousies sgainst him, and
represent him as an oppressor in the country.
At last, without any authority from the tenants
who were to be removed, he took s jonmey to
Edinburgh, on his own expence, and applied,
by a bill of suspension, to tne court of session
in their names ; in which the factor's conduct
vas set forth in such false and odious colours,
as procured a sist or stop of execution of the
decree of removing, pronounced by the sheriff,
at the factor's suit ; and, by the same fsisc
suggestifins, he so far im|iosed upon such of the
barous, as were then in town, ss to make them
listen to his complaints a^^atost Glenure.
When Glenure was informed of all this, he
vent directly to Edinburgh by grestjouniies;
and, 09 soon as he had an opportunity of being
heard, he obtained a removal of the sist from
the court of session ; and satisfied the barons,
that be had conductcMl himself entirely by their
Mstrudions. And, having bee^ only two davs
kk towDi he munad with ipeditinn Io the
country^ Whitsunday being then near at
hand.
This scheme beinj; frustrated by the dili-
gence and activity of the factor, measures of a
differeut nature became necessary.
Tlie prisoner had no hopes of^ being able to
keep up his influence and interest in the estate^
while Glenure continued to have the manage-
ment of it ; and if he should be sble to get the
better of him, he had reason to think no other
would be so hardy as to undertake it It was
therefore resolved to take him ofi*, and that be-
fore he should remove the tenants.
For the execution of his scheme, a very proper
assistant was at hand ; Allan Breck Stewart, a
person in desperats circumstances, who had al-
ready forfeited hb life to the laws, and enlisted
himself an enemy to the liberties of his coun-
try ; a dependant of the family of Ardshiel ;
brought up from his infancy under the earn
and authority of the prisoner.
With this assistance, no method waslefk nn-
attempted to stir up the populace, or some of
the hardiest among them, to cut off Glenure
by violence. Their attachment to their chief
was made use of for that purpose. The pre-
servation of his family, tlie welfare of their
country, and even the very being of the clan^
were represented as inconsistent with allowing
Glenure to live. Reproaches were used to some,
rewards offered to others, and strong insinu-
ations made by the prisoner to his own do^
mestic senrants : but all this had not the de-
sired flfect.
Wherefore, on Monday the lllh of Maj^
Allan Breck, who had no other occupation hut
wandering from house to house amongst hia
friends, and was thereby well able to trace all
Glenure's motions, came to the prisoner's
house, when the resolution appears to have been
taken, that Allan himself should set out early
next morning to way- lay Glenure, and take
the first opportunity to perpetrate the murder.
This was no difficuh task to one who knemr
the country. There were but three days to
run to the term for the removing. In that
period, it was known that Glenure was to go
from his own house, to the slierifTs court at
Fort- William,, and return to the lands from
whence the tepants were to be removed. The
nature of the country, and the several ferries
which he could not avoid, made it certain what
road he must take ; and a wood near the lands
afforded a proper place for the bloody deed.
But Allan's dress, being the French uniform,
was too remarkable for an executioner of the
works of darkness ; he was therefore supplied
with another, of the ususi colour and fashion of
the country, by the prinoner. The Court baa
heard how be theu took his station at a place
within sight of Gtenure's house, till he aavr
him set out for Fort-William, and then how he
retired towards a ferr^ , where it Was known
Glenure must pass in his return.
In the mean time, tnesaenger after mcwon
ger u sent to Fort William by the prisoocr, to
get nora pertieelar ieHlHgiHB of Ofenure^
On Itic nif III of lite 13th, Alltn cmnit
tt 1 ptoM Mij>pem to tbe ferry, >nd retiretl in
fl# mtOMf^ kttim %h0 ifood/trom which li«
Mlf mmm aim U irmpiirB if Glenure vrsk% pftil.
very litne ft l^uui tielonf(in;|^ to th«
r*t »*fni»«tttig ; and« in ilic tv«niDgi
' WM» fthul lu ihe wriod.
itkehcM-rtu ' ' uunfer threw All the
lioi' M addconsternution^
^ Mr|Hi9e •ppenrT'ii (i|i^Mi ih« imsoDPf, or in
InltiBiJjf. Their titention Wft&enlirf^ly Hxer]
i|Hn iIm cn^uiiofi of the tufSASures iliat had
ItOi awitijleil for ficihi«lifif the Riorderfr'a
«Gm: fhrilMi pnrfios^, • mciftrncer was dts-
|MMil Ml pimr« money : upon the return of
■ngsr (ibough Ihe privooer w»s then
jF> ib« mot»ey he bn»ui^hii with w^hat
iniMmer could afFoi'df and also the
mkm^ were, by the priisoner*8 dircc-
llnft, Ctfliti 10 a refiiot« place in the mouniaiiii,
vlum ANftA fir»ek had fur tome lime vvaited
leTtbein. At the aarue lime the
m^ which bad been coooealed
mmf km fce«M| iv«»re di<$cof ered ; ftiid ihe vefy
gm, wftsdl bad been missiitj^ on the day of the
— riiff, wmM foQod nmnngst ibeni) with mch
«Kl»iaihvir«4 itiat it hid beeu tately dt^
Tiuii, tmy larda, aa I had oeca«iion to men*
iMi •8«Mi ^th« facts to be proved, 1 could not
ifcorlly toOQirig over the wUote, in oitler
ibvi« m oCk« View before y<»ur lordihips
Itb«>itf3r.
Am, fiwm lht« rtew^ f apprehend it wiU now
MMfi l«i«,/rbit the friernJiihip inetilioned by
In oinifl fbr the priNifieri duet not derogate
flN«itbenr<filMibtlity of bii guilt U is a na*
I, «M rrcn m neceaaary link of the chain
mUeli III* whole depends.
It mirat occtir to every one i»ho bean
l^fiida, til at tliim|fh it is poanble, btnely
"^ »y Ikal Mrreral of ihent might hife btp-
•bvia^a lb« pn^on^r had been ioiiocefit
«fll»cri»r that lA charged upon him*, yet it
I to coaceirep that Bucb a lung aerieit
inecs, ootin«eted and cortvapondtng
•iii 9m9 enolb^r, all omeiirf kig to answer the
«a» tail ibaald be the hum fleet of chance,
mi wm thm coQ»e<|uei»ee of intention and de-
TV take no ln«tanre, it is vefy eniy to be-
Wvt^UMl llleii Brtck mi|^ht haf e cha'ngfeil hia
Mbea« tbofiffii be hftd not intended to murder
1 1 iM thai he mi^bt have lodged for
•Irble i^ier Cllenare*« house, though he
Ml Me»ileil to lie in wait for hia Itff ; but
I wm ftwl Cbt aeme Adio Breck himseK'
J U marder Olmiilt, ^iMl tnatigaiing
Hkm 10 do H; a(tertfi/di ebengitig hit
AriMB, ly^ in ^^f^il »f timet and in
«oai finnts^ afi|»caniiL' v lontly ini|mr*
^Iktl31^«f*iienrihe ltiii4:< Hud place ol the
•niiii, mi4 m toon ct h wm cominiti«d, fly-
% wiHi irvmrnMl fitvdfltMtMi, who can doiibt
iit be wtfl tbe iBttni^cr f
^ b tbe Miitt iMttinir ll in^bi w«ll tufimed,
' Bil|piil hvif% wot Albiii BifBCs
n ttiit of clotbei, or given Him enterlainraent in
his hotivPp ihrvugh he had not instigated him tHi
ciHnmit the murder. But il" it it com\dertd, J
thnt ^llan Bf^ek had no quarrel nilli Glenttrt^i
other than what he was engaged in by the iihI
lldi'QCe and authority uf the prisoner | that I
carried tJie resentment^ on the prisoupr'a ao
count, to such a height ai to threaten to fthooij
ff1enuFP« and joined the prisoner in prompliud
others lo do it ; that whon Gleiuire returne
imexpecteElly from Kdiiibtii^h, Allan Bn
went imtnedialely with the intelligence to th
prisoner ; ihnt when he set out to lie iu waU
for Gtennre, it was af\er a consuttalion wilUt
and being nccontvcd for that purpose by, i
prt^ner ; that the o^un with which he shU
Glenure, appean lo nute been the property \
ihe prisoner ; that, after the murder wat core
milled, the munlerer relied for money an
clulhes for his eacape, and aciuully if id receivi
them from ihe prisonei ; I say, let all lhc»*
concurring circumstances be bid together, i
who will doubt that he ^aa instigated, aidedj
and ahelled by the prisoner ?
It is therefore in vain to nrge» ihat otie
more of tht^e facts, when tnken separately, an
not relevaiu to infer the conclusion of his gutlt«j
It is iVom the connexion and concurrence e
the whole^ that the connction of his guilt doe
arise : and il is only from a proof of tbe whole
that the pro^cutor& expect a judgiDent agarnd
him.
In the last place, the counsel for the pHitone
have urgnl a point of law in his defiance, wit
Til ul aupjiosing the facts which have been sel
forth, 10 be relevant to infer his gintf ; ta he T
only charged as an accetsary, lie cannot
brought to trial fur ihe crime, until the princ
pal be first convicted. In s«upp<>rtjng df I" "
texis have iH'en quoted from Ihe old law-l>ook^
Uuoniam Attachiamenia and Regiam Mnjesta*
trm. h has been said thai ibis tn ihe law of
Engtnnd at this day, and Ihat sir George Mac-
kefiiie^ in his Treatise of Crimes, boa laid il
down to be the lew of this country.
As the word * ■eeetsarj ' i« a relative, whirl
cannot be witlieut a principal to iwhich it re'
Idles i it m**st be admitted^ Ibat no evidenC
will be sufficient to convict an accessary « whrcb '
does not prove that ihe crime was com milted
by the principal, who is thereby convicted, 10
Ihe eHect that justice may bv executed againfl
the accessary.
In this tense the maxim isjuMt; but in the
tense in which it is pleaded for the prisoner, I
will lake upon me lo say, it is not supported hy
Ihe 1ft w of this country ; it is inconsistent with
Ihe orinctptet of public policy, and anbvereive
of all civil tociety.
It is inde^Kl a majtiro, and a good one, m the
law of Scotland, that no person can be con-
demned, til as to suffer the punisliment ap^
pointed by law for an> crime, unless be be pre*
dent in court, and have opportunity to ohjuct la
the evidence by which it is to be proved ftgemtd
him. But in ili<^ t»re»eot case, it f^ nol AUr^ea^
that AUttu Dreck cotiltl be condeowietl, ett4
59]
25 GEORGE II.
Trial ofJanut Stemart,
[60
brooght to justice, upon the evidence that is to
be brouffht in tiis absence against the prisoner.
If he shall atkrwards appear, and stand his
trial, the proof, in so far as it relates to hitn,
must again be repeated in his presence, and it
will be com|>etent to him to object to e?ery part
of it. But at present, as the evidence is
broug^ht only to the effect that the prisoner
inay be punished, it is he only that can plead
the benefit of this maxim ; and it is competent
to him to object, as well to that part of the evi-
dence which fixes the crime upon the principal,
as to that which proves his accession.
As to the law of England, 1 will not take
upon me to ai^gue from it ; 1 do not pretend to
be versaut in it ; nor do 1 apprehend it will be
decisive in this case. Nevertheless I have
reason to believe, that it is the practice in that
part of the kingdom to proceed to the trial of
the accessary, after the outlawry of the prin-
cipal ; from which I would infer, that, in our
practice, either the fugitatiun has the effect of
the outlawry, or there is no argument to be
drawn from the one law to the other.
With regard to the old law-books mentioned,
it is well known to your lordships, that they
are generally believed to have heed transcribed
from the laws of Eosland, at a time, indeed,
when many salutary iterations are thought to
have been introduced into our practice from
thence; but that it is by no means admitted,
that they were ever ingrossed into the body of
our laws, or that every part of them has been
confirmed by our practice ; many instances of
the contrary might be mentioned. But I for-
bear to consume the time of the Court upon
this question, because the only ground 1 can
find to suspect, that it ever was held to be a
donbtin our practice, is the 153 act, 18 pari.
Ja. 6, which appears to have been made with a
view to take away all doubt for the future.
The words of this sUtuteare, " That in all time
cumming, all criminal libelessall conteine, that
persones compleined on are airt and pairt of the
crimes libelled; quhilksall be relevant to ac-
cuse them thereof; swa that ua exception or
objection take awaie that part of the libel 1 in
time cumming." Which, m more modern lan-
guage, imports, that, fur the future, no ob-
jection bhall be sustained against a libel, which
charges the person accused of being contriver,
adviser, aiding, abetting or assisting, in a
crime that is otherwise relevant.
And sir Geo. Mackenzie, in that very pas-
sage of his Treatise on Crimes, which has been
quoted in behalf of the prisoner, though he
lays down the arguments which have been
suggested on lioth sides by the authors who
have treated this question, he concludes with
observing, that, in Robertson's case, the Court
found upon this act, that an accomplice might
be tried, though the principal bad not been con-
Ticted nor fugitated.
Upon these principles, the practice has been
uniform for many years ; and the present cir-
canatances of the case do not seem to afford
•oyreuootoderiitcfronit, For your kNrd-
ships and the jury must be convinced, from
the facts which have been opened, that as the
murder was committed with the advice, and at
the instigation of the prisoner; so, but for hii|
aiding, abetting and assisting, the murderer
had been now also prisoner at your bar.
Lord Advocate (right hon. W. Grant) :
BIy Lord Justice General ; I stand up at
this time, to support the reply that hath beca
made by the learned and ingenious jfeotlemeii
on the same side with me, to the defences thai
have been offered for tliis pannel ; but as it
hath not been frequently practised by mjr pre*
decessors in office to attend in person atdrcuif
courts of justiciary, I beg leave, first of all, to*
say a few words for myself, to give the reason
of my being now here : and I am persuaded
that every one who now hears me, will believo
me, when I declare, that, negatively, that hath
not proceeded from any particular animosity
against this unhappy man m the pannel, whoa
1 never saw until this day when he appeared
there ; neither is it singly because it is a horrid
and atrocious murder that is to be now tried ;
or that the trial is to proceed upon indirect and
circumstantial evidence, because such cases
have oflen occurred. But the trutli is, that
upon my first hearing of tiiis murder, in the
month of May last, of a gentleman of tbi»
country, the king's factor upon certaui of the
forfeited estates that had been but a few weeks
before annexed to the crown unalienable, and.
the produce of them approoriated by law to
the most salutary and beneficiai purposes, for
the future tranquillity of the united kingdom in
ll^eneral, and for the immediate advantage and
improvement of these highland parts of Sootp
land in particular ; 1 was greatly shocked, and
considered the murderers, whoever tliey were,
as having been guilty not only of a most horrid
crime against the laws of God and huoianity,
but, together with this, of a most audacious in-
sult against the most gracious and beneficent
acts of the king's government, and of ths
whole legislature ; and, as far as in them lay,
had endeavoured to make the world or the
Kublic believe, that the civilizing of the High-
inds of Scotland was a vain and impracticablo
attempt ; and under this impression, I then re-,
solved, whenever a discovery should be made
of any persons concerned iu this wickedness^
to attend at the trial where-ever it should be,
and to do all that in me lay, consistently with
law and justice, to convince the disaffected part
of the Uiffhlands of Scotland, that they matt
submit to this government, which thev have se-
veral times in vain endeavoured to subvert. ^
And now, as to this trial itself, your lordshipn
have heard the libel read, and sooie |>arta of
the evidence which we expect to bring in rap-
port of it, more particularly opened by tM
gentlemen who opoke of the same side witb
me ; and none of these things shall 1 now r^
peat ; but only make a few observations apoa
what hath been offered by tlie oomiMl for itm
paooel by way of defcnoe.
3 ^^^^^^^ fof MnrJcr,
iodt ^(i^ «^ A^» io c"^']^ to lay <^tit of the
phut is ffyreigD to tht? in^ribi nf the trttil,
eoiMi^«>| Unvv ^♦'♦^n pleased !u take
iJ( ^ * grieFnncpi, tbal
V. - CO nth lenient in
I ivrT- II iiHun ; n[iij Ihai, by
of the private pro^ciitoi', n^U
"^^ ^ ' * 't^TC been retained
imag I ance. As to tbe
•Cwbu.^ - I ^. -^^:i gfievancL'Sf J aoi
jammmt of the pftrticuf«r facts apon
tiM rnmMiint is founded ; but if it be
tin: 1 wa» binj^er kept in cloie
■ivi fhoald have been» or until
qM|nk*iaiiti«^ officer was informed bow the
kw gnind. tlie ptuti«<l cao be under no real
AsAdvmniaire ou llmt occiuint iu bla presfiit
truit; livcamfr be was tirs,! taken into custody
wmtS^^Kf^j the Itith of May, that is, about
aeo: nod KiippoMing it true, that
Iiyt of so long a pt^riod^ peo[de
tobim %vhom be liud a mind to
It htki full time, wticu all these are
10 mdkt the neeetsary provisioo for
^ Vomt tlm and oilier pafisa^f^ respecting;
biiMii|it» •I'ltbich ct»mpt.imt was made in this
mt^ tbc J^llotvin]^ remarkii are made in the
it t" I "tt of James Stewart r
the I'' -standing this matter, it
litre lu insert a clause or two of
ad uf purliament'' [the act ag^ainst
iiiifiri»oiiint;ni, xee p. 59], "oeing
pi inm 8th and 9tli sessions of king
* justly f^^-'* ihe palladium of
fa 1^ le of which it is
Tliat OUT -^u.^...^.; lord, considering*
II laili^ murrt%t of all bh good subjects, that
*1bifib«^tv of ilteir persons be dul)^ secured *
*Miik7 tret) by the Claim of Ftij^ht,
*ta.ili' itnent of persons^ without ex-
' pRflB^ tb« reA»on!b thereof, and delayinsf to
'M Ifccni tp trial, \n contrary to law ' there-
' wtiyt«i;^|e«iy, with advice and consent of
* lWflmM«i^pftriiaiiient, itatutes, enacts, and
'pJMji, ^~ '^ > shall sign their
*HAvm^i ^r»on shall here-
'lUitW tittpri»un».t] lur rusiody, in Order to
*l^ Ht 99 f crime or offence, without a wa r-
*fMiBwrit« cspmaiiig the particular cause
'i* vliiclt be IS Impmoiied : and of which
A. D. 11B2.
[69
As !br the other alleged grieTtnce, I myself
know certainly the foundation of that ; and so
far is true, ihitt after i bad es|>ected, for ^oiiie
time, to receive from the sheriff-depute of thia
* wnof tb« iniw*iiger| or executor thereof,
* MlKe ifPfifiwiPipetit, or the keeper of the pn-
'ht) rrottfiiiii tbeaame, is hereny onlarned to
uM doablir iffittiedialclv under hi^ hand
' bimtelf. for nif* end after »pe*
i by the pri-
ir\Aiy when it
t[it c.jd of this act—
f^ all close imprison-
'' \ ■'■' ' '; ^Mfl
'MS
i,T ,u-..ll .. . |,rU>e
/. thatftt tti»> 2t.l
iSpd, * Act fur the
id fauiibimnl of Ui'^U
f
lB»i^f i^r at hN
'Ia4f.
*lb»eMMiilii»tnt^
*lHtorittiiiiin-t '
Firvf ki«f
'^■vcfiKtt
* Treason and Misprision of High Treason fn
* the Hie blonds of Scotland, ic. — And it is
' berifby farther enacted, That the seveml furls
* erected, or hereaiWr to be erected by bis ma-
* jesly, his heirs or successors, within tbe said
* %hires of Dumbarton, Stirling, Perth, luver*
* ness, Argyle, Slc, or any ot tbeno, sbtill be^
* and they are hereby declared to be lawful
* piisoti^, for (be commitment and aafe custody
^ uf oflenders ; and the seTeral and respective
» officers commouding for the time being, in
* any such fort or forts, are hereby impowered
* and required to obry and execute all legal
* firders and warrants that shall be to them di-
* reeled, for tbe receiving and detaining, or re-
* Uasingand liberaliog any pciKon or persons
* committed to their charge or custody by the
' ctril magistrate.* Which laws, as they are
snpposed to be known to every snbject, so are
they more especially to the governors of forts
and keepers of prisons ; who, if they transgress
the law, are to be reckoner] oppressors, and are
punishable accordingly. To say, that military
men are to be excused, as being ignorant of
the law, is no better than to make a joke of
liberty, and laugh at the oppressed. But ig-
norance of the law is tbe plea ; and, thank
God, they dare not as yet avow any other; a
plea which may aa well be urged by the per^
petraCors of tbe greatest uf crimes ; and I do
not bold him as guilty of the least, who shakes
the foundation uf pu!"lic liberty, by removing,
though far an instant, the corner-stone upon
whicn it rests, Ilow far that was done here,
will appear from the trial.
*' The true slate of the case, as to the taking
up and detaining James Stewart in prison, is
as follows: — Glenurc having been murdered
on tbe 14tb of May, James Stewart and bis
eldest son Allan were made prisoners on the^
16th in tbe afternoon, by a party of soldiers,*
and carried next day to Fort-William ; where
they were imprisoned, without any signed in-
fortnation against them, or warrant for so do-
ing; tbour^h the law, as just now shewn, most
expres!<>ly directs both. It is irue* there ap-
peared afier wards, viz. July 6, a warrant
signed by the Lord Justice-Cferk, and dated at
Kdinburgh, May 17. But as Edinburgh is
three days journey, or 88 computed mile^»
from ForVVVIHiam, it can never be pretended«
that (he imprisonment could have been mad^
in virtue of this warrant From the 17th of
May to the <Zist of August, Juroe* Stewart wa«
kept in close confrneinent (as to admittance ta
others to !iC€ binOt excepting once, towardm
Ihe end of June, when a tetter of dirvctions to
his wife, with the lorenaiil act of parliament
ugainKt wroiiw^us imprisonment, were shewn
M roldut'l t.iawfnn^ the then commanding^
oiriter ui Fort-Wilham ; who tbtrcupon al-
tuvTcd Mrf.l&^evi'9tH and hrr two tittcrv, to i«r
63]
25 GEORGE II.
Trial qfJamet Stewart,
r&i
county the result of hU inquiries concerning'
the munler of Gleniire, and the examinations
be had taken on that subject ; these were, at
leoi^th, broti|;rbt to aie at Kdinburgb by cei:tain
the prisoner; but refused admittance to every
male friend, or pcnM>n capable of advising and
assisting him iu bringing on his trial. At the
same time the prisoner sent one to Barcaldine,
Glenure's eldest brother, to demand a copy of
the warrant for bis imprisonment ; and received
for answer, that he mi(>ht get it from the jailor
of Fortt William. All this I have seen in a
letter under James Stewart's hand, dated June
25. Agreeable to the directions seat to Mrs.
Stewart, she required Charies Stewart notary
at Banavie, first to aliew the act of parliament
to colonel Crawfurd, and then demand, under
protestation, a double of the warrant for com-
miittog her husband. But the timid notary
flecUnM the employment, and left tlie place.
The cauie of which behaviour in him mav be
discovered, bv looking st his deposition ; where
he says, ' Tnat he Tiad formerly declined to
* act (viz. at the ejec(iou), because be did not
' care to disoblige Glenure.' And if this was
thought by him to be a good reason before for
Dot acting, it was become a stronger one now ;
uhen not only James Stewart's friends were
menaced, but the whole country put nnder
terror. For Mr. Stewart younger of Balla-
chclish hsd asked from Barcaldine, at the
liouse of Glenure, a copy of the warrant of
commitment ; and was not only refused it, but
told by Barcaldine, that it was none of bis (Mr.
Stewart's^ business ; and if be acted any for-
Uierin this matter, be himself should be taken
up and imprisoned likewise. This yonng gen-
tleman however, seeing himself the only per-
son that had courage to speak or ad for the
prisoner, went to JVlarybuigh, adjoining to Fort
William, and from thence wrote a letter
to colonel Crawfurd, earnestly begging to be
alkiwed to converse with the prisoner about ex-
press business, and in the presence and hearing
of any oflicer the colonel should be pleased to
appoint. To this letter Mr. Stewart received
the folkiwing answer. * Fort- William, 3
< o'ckudc. Sir ; colonel Crawfurd desires me to
* acquaint you, that you are represented to him
* as a person entirely in the ooulidence andse-
'cretsof Allan Breck Siewart; and that the
* intercourse you are said to have held with the
* supposed murderer of Glenure, at the time
* immediately precedintf the murder, makes it
' (in his o|Mnioo) improper for your being ad-
* wilted either to the prisoners, or as a friend
* into the garrison. — ^"rhe colonel's illness lie
* hopes will be an excuse for not writing bim-
' self. 1 am. Sir, your humble servant, (signed)
Too. Weldon.'
*< Now, without saying any thing in parti-
eular of this extraordinary fetter of adjutant
WeUoB, is it not evident, that the foresaid act
•TpMrliMiient, the only security of the liberty
«f our persoM in North-Britain, was despised
mA diitbeyad in a moit illegal and arbitrary
of the family of the deceased, who bad taken
upon them, as it was very just and natural, to
be managers and conductors of the inquiry,
and to cause to be brought before the sheriff to
manner, by the ^vernor of the fort, even after
it had been put Into his hands, as above men-
tioned, and was undoubtedly read by him P But
this bsppeoed in the highbuids of Scotland, at «
place governed by miiitery persons, and remote
from help, check, and every other controul.
— Soon thereafter, col. Crawfurd being re-
moved from Fort- William, Mr. Leighton took
his place ; to whom the prisoner's wife applied^
desiring access to her husband. But this her
legal privilege was not only denied her by the
uew governor, but she was told, that if she did
not immediately depart from the town of Ma*
ryburgh, she would be put in prison herself.
Thus tliis poor and almost distracted woman is
driven from the place and neighbourhood of
her husband's connoement, and <3>liged to leave
him in a friendless and forkim state. And
some time after this, the same Mr. Leightoa
having allowed James Stewart to write a letter
to one of bis acquaintance about necessariea,
James ventured, m a postscript, to comploio to
his friend of the closeness ol his confinement,
and other hardabi|>s put upon bidi. But the
letter being carried to the governor, to be reed
by him before it was sent off, be went in a
passion to the window of the prison, and tbere
scoMed James fur daring to write sucb a pest-
script ; and throwing the letter into the priaoB«
assured James, that if he did not write bis letter
over again, and keep out the postscript, oo leU
ter should be allowed to go from him out of the
garrison.
Pudet ban: opprobria vobis,
£t dici potuisse, et neu putuisse retelli.
" At length, on the Cth of July, after a dose
confinement of fifty days, a double of the
foreioentioned warrant from the lord justioe-
ckrk was delivered to the prisoner. And that
h W88 on tliis day, and no sooner, can be in-
atructed by a letter under the prisoner's band|
convej^iug this double to one of his friends^
By this delay, and tlie hitherto dose confine'
ment of the prisoner, did the prosecutoxe se-
cure a most consequential point ; the putting
it, to wit, out of the prisoner's jiower to bring
ou bis trial in the justiciary-court at Edinburgb,
by running his letters ; where his agent would
have had daily access to him, and the assist-
ance of lawyers could have easily been got, in
order to his defence. W heress, by the fure-
mentioned artful and unlawful methods, he did
nut see either agent or lawyer till at laverarjTi
within two days of the trial ; unless it was el
Tyndroin, where, in the road from Fort-Wil*
liam to Inverary, he accidentally met with bia
agent, and conversed with him for about ea
hour, as shall afterwards be more particulerijr
taken notice of. Still the prosecutors had it n
tbeir power to have given bim notice of bii
Uial, and time for hie agent end Uwycis It
63]
for Murder.
A. D. 1752.
[66
be examined, all persons, who, according^ to
Ibeir ioforrnation, €»iild g^ite any light iu tlie
affair ; and, with the examinations so taken,
they brought alon^ with them to me three
learned counsel, which was also very reason-
able and usual, and, as in all other cases, was
prepare far it, by bringing it on in the way of
presentment, or what is commonly called the
porteoos-roll. But they were not so disposed,
oa'qg determined at any rate to have the trial
U [nverary ; thoufph contrary to the opinion of
some, that on all other occasions used to direct
tlie condoet of the chiefest person among the
private prosecutors. The reason will readily
occur to the reader, on considering, who was to
be tried, at what place, and by what jury.
'* After all, criminal letters were raised, and
printed at Edinburgh. James Stewart's agent
betng informed of it, earnestly begged a copy of
the libel, which, he said, was a favour that no
pcfraoB (if the least humanity could refuse, con-
wdering how short a time it now was to the
ailtiog of ibe court ; and that if no copy of the
ifldictmenl was g^ven him, and advantafi^ was
10 be Uken of executing it at Fort-William,
three of the fifteen days allowed by the law
must be elapsed, before it could be transmitted
from the prisoner at Fort- William to his agent
It Edinborgh : so no sufficient time would be
left bim for finding lawyers of character and
expetieoce, and making the other necessary
preparali'ons ; as roost of the noted counsel in
Ediaburgfa had been industriously taken up by
ike private prosecutors long before ; and it
being vacation -time, the rest of them were gone
into the country, oc engaged to attend the other
cireuit-cviuru. Add to these reasons, the time
it would require to write out copies of the libel
far the several lawyera that might he prevailed
■yoB to appear as counsel for the pannel, in
•rdcr lo their considering it duly before they
ifaaald meet at I nverary ; otherwise it might
ioofc fckcr going the^e to^itiiess the form of a
^1, than to lie of any service to the pahnel ;
which tbey could not bfe, unless timely prepared
fcr it. Yet, strange to tell ! even this small
and usual favour, a copy, to wit, of the printed
Iftei, was absolutely refused by tlie agent for
lbs prosecutors ; u bo always shewed (to his
frabe 'be it said) the greatest diligence in car-
rjiof on this good work. Nay, a person of
pM distinctioD was threatened with a cOm-
pUit against bim, if he, in compassion, to
vUefa be was much inclined, should give
or aiSer a copy for the pannel's agent.
k copy however was procure<l, by mere
afleidesL It happened thus.— Such care was
pikco by the private prosecutors at Mr. Fleni-
■g** printing- hoosoii while the libel was in the
press, that one for them Mood by all the time ;
and ao soon as it was finished, the tjpes were
Mbtf do wo, or discomposed, and all the copies
csrried mway. It hsippened pmvidenlially, us
•as then thought, tbmt the prouf-copj\ which |
bsd been thrown into a corner, was picked up I
ky acttrions strangeri who most kindly cariiud j
VOL. XTX, I
to myself most acceptable, that we might
jointly consult and deliberate, whether from
these examinations, and the discoveries thereby
made, there was matter sufficient for bringing
this pannel to trial; upon which question we
all agreed in the affirmative : But these three
it to the pannel*s agent ; who caused reprint it
immediately. This coming to the knowledge of
the private prosecutor?, complaint thereof was
made to the magistrates of Edinburgh : the
foresaid stranger was called before them, in
order to be prosecuted, and the servants of the
printing-house were threatened with punish-
ment. But a certain gentleman, of more pru-
dence as well as interest, hearing of tliis in-
tended process, advised it to be dropt. In this
by-way, then, the pannel'a agent being fur-
nished with a copy of the libel, and observing ia
it some extraordinary articles, especially the
general- one relating to threatenings, wa& put
mto a most alarming hurry, to prepare for the
defence of his client. He had expresses to
send to different lawyers in distant places, and
rode about himself night and day, to try and
persuade two able counsel at least to undertake
the office. Of the men of greatest note most
were pre-engaged by the agents of the other
side ; some were afraid of the rainy weather,
anti the length of the journey ; others of re-
sentment from a certain quarter ; and many re-
fused altogether. In this perplexing state, the
pannePs agent, almost ready to give up the
cause of his poor client, went to one of the first
counsel against him, and declared, that he wan
to advise the pannel to throw himself upon the
court, and to plead his own cause in the best
way he could ; seeing no lawyers of weiglit
could be found to speak for him. But this, he
was told, would be a (Ies[ierate course, and was
advised by no means to take it. At last, four
very sufficient lawyers (two elder, two younger)
were prevailed upon to go to Inverary. And •
the agent having succeeded so fur, resolved
next to go to the pannel at Foil- William, in
order to learn from hinv^elf what (le had to say
in his own defence. Hut being informed, in a
direct manner, that not only the pannel himself
was kept in illegal close conKnement, -but that
likewise his two sons, his two servants the Mac-
colls, ami others in the list uf witnesses against
him, were all confined in the same illegal way
in the prison of Fort.-Witliam; and particular-
ly, that the said two Maccolls had been kept
there in shackles, or hand-cuffs, for the space
of three months, and a third Maccoil (the bou-
man) shackled in the s:inie way some shorter
time; he, the agent, Jintged it proper to ask
an oriler from the lord justice clerk to the
keepers of the prison where lliese Witnesses
were detained, to give aeress to the agent, to see
and inform these prisoners, (in the presence of
the ofliccrs of th»^ garjjs<«i, or of any of the
jiibticfs of the pencT or minister of the gospel
he u»i;;lit find tlirre), not to be terrified hy the
crnel :;:id iilr<!:il trintiiieut they had met witli,
and to .s\ver\r no:hin<r but what whs true. With
F
67] 25 GEORGE 11.
geotlemeii, though Tery able in their profei*
MOO, were not til the ezperieoced coaniel. And
as it is my comtant with to see every pannel
as ahly ildreDded as his oaase wilf bear, it is
this Tiew Mr. Stewart, the pannePs agent,
gate in the following Petition :
•• Unto the Right Honourable the Lord Jus-
tice-Clerk:
** The PETmoN of James SrEWAiir in Aocham,
Allan and Charles Stewart his sons, Doanl
and John Blaccolb hisserfants, Alexander
"Stewart packman in Appin, John MaccoH
bouman to Appin in Koalisnacoan, and
Juhn Carmichael miller in KinlochleTOu,
all prisoners iu Fort- William, or trans-
ported from that to Inrerary.
" Humbly sheweth ; That your petitioners
Were in May last apprehended, and incarce-
rated in Fort-Williaoi, upon suspicion of being
art and part in the murder of Colm Campbell of
Olenure, deceaied ; and have been close confined,
and no admittance allowed to theiA, since they
were incarcerated, though frequenfly required ;
notwithstanding the act of parliament, in the
Tear 1700, anent wrongous imprisonment, pro-
hibits and discharges close confinement of any
prisoners after eight days ftom the time of com-
mitment
*' May it therefdre please your k>rdship, to
grant warrant and ordam the gOTemor of Fort-
William, and all other keepers of prisons where
your petitioners are, or may be sent, to gi?e
free access and admittance to all persons who
shall desire to see and conferee with your pe-
titionere, for their defence, or any other lawful
affairs. — Acdbrdincr to justice, ^c,
** (Signed) A. 8tc\vart, doer for the petitioners.
** On this Petition the following dehferance
was given :
«' The Lord Justice-Clerk having considered
the above Petition, and having interrogated Mr.
Stewart who signs the same, whether he had
instructions from all or any of the prisoners in
whose name the petition is offered, to complain
of their being confined otherwise than agree-
ably to the directions of the act of parliament
anent wrongous imprisonment ? and he having
answered. That he had written instructions
from James Stewart, one of the petiiionen, to
set forth as above, but no direct order from the
other persons themselves* ; grants warrant to,
and requires the keepers of the prison at Fort-
William, and recommends to the commanding
otiicor, to give access to the friends and
lawyers^ at all proper and convenient times, to
see and converse with the said Jamea Stewart,
in order to prepare for his defence ; a criminal
* " Mr. Stewart offered to give oath upon
it, that he was properly instructed to make this
ap|)lication, hut did not chuse to shew his letter
of instructions, it containing tbingi not yet
f roper to be known."
Trial of James Sietoartf
with oleasure that I now see this ptnnd at-
tended by lour of my brethren, who I am sur*
will omit nothing material for bis service. '
Upon the cause itself, there is, in reality, no
libel having issued against him, in order to
his trial at the circuit-court to be held at In-
verary : but refuses to interpose as to those
who have given no express direction to com*
plain of the keepera of the prison where they
are said to be confined, or to give any orders as
to keepere of prisons, who are not accused as
having done any thing contrary to the duty of
their oflice. — Given at Edinburgh tbe SOtn of
August 1759«— (^S^^) Ch. Are8K«£.
** And here let it be remarked, as an occor-
renoe in these proceedings, not the least extra-
ordinary, that a British subject waa obliged to
sue, as a fiivour from a judge, for what be had
a right to by his birth. But it was still inore
extraordinary, that that favour was refused m
some parts, and scarce muted in any. The
great officer of justice who was applied to, ex-
pressly refuses to interpose as to some, vis. .
those who have given no directions, though
he owns they are said to be confined, (uA'
whose confinement prevented them finom gi? •
ing directions) ; and refuses to give any oideni
to jailon who are not accused of having done
any thing contrary to the duty of their office ;
as if the very applicatiou to him did not import
a breach of their duty in the grossest manner,
in defiance of law, nay of a law the most sa-
cred barrier of tlie riffhts of the subject. This
is what he refuses : let us see what he graufs.
He grants sn order to the jailor, and ne re-
commends to the commanding officer of Fort-
William, to give free access to James Stewart,
one of the prisonera, a criminal libel haring
issued against him, as if that dreumstmnce
was the reason of the admission. The words
of the act are free, as the natural rights of
mankind, from which it was derivra^'^end
which it was calculated to ascertain. It is
an inhumane restraint on the most valuable
of human blessinsrs, liberty, that that law
meant to ward off": and all that are impri-
soned, are equally entitled to its protection.
It is not to the pannel, nor tu the witness, bat
to the prisoner, under whatever denominatioii,
that it extends its relief. And surely, if any
distinction had ever been intended, witneMfen
would have been the last to have been included
in it ; whose information is more necessary to
the agent, than even that of the accused him-
self. But, restrained as this part of the order
already appears, this is not all ; for it was di^
rected to the jailor of one particular prison
only ; s restriction of so inuch the more con*
sequence, as it will appear the prisoner was
removed from that prison before the agent
could well reach it, nay and in consequence of
a warrant sent from Edinburgh for that very
purpose. As this affair will suggest sufficient
matter of observation of itself, 1 shall make
upon it but this short remark. That igtuMUMie
§9] ~^^^H^ for Murder,
fk^ea to 1 dtbitoeti the retevaocy oMIie libel ;
90f ^kMS lli«r« ippear to me to be aoy iltf-
» betvrixt us mmccnung the interlocutor
lenre or ex{i«cl to receire irom jour
1% foe iHi' J * I i»f counsel lor tbc
Tbvre Ailmii i ocity of the crime
bijxi AS struiigiy qb I am able to
1.0. 1752.
[70
I
JkB hm CMDQt be pleaded in this case^ as it
v»is ihil 4>f the military jailors* Nor let
llot f«HllcQicti take ofTenee at this apnella-
Ml { im mtMoe ihev submit to the drudgery
^~ my ao «iQfse\ ol^ the ofiice^ let them bear
liiatMHioiir of ibe name: fur little is the
between bein^ exborled by recom*
If, or compelled by orders, to the ex-
' iba fuDotion, unce exercise it they
10 return (Votn a digression, which
i will, it is hoped, eJCcuse :
fe deHverance was sent by express
%m F«rt Wtnkin, the panorl was served with
iW ofittbftl letters on the 21st of August,
I iajB before the trial came on ;
rtoif hw of these days ibr the troops
wHii their prisoner from Fort Wil-
» Ifffcrmry, and tiie three Suudays that
d, there rem tuned only twelve free,
MSI precious days,
^ Tb« pexiner^ agent having taken at Edin-
hmgb mbmi previous stepiit (he shortness of the
liaft avowed bun to do, set out for Fort Wil*
Uftm OQ ibe ftasit day of August ; and, on the
Sd of 8etttrmber, met acculentatly with the
leoael at Tyndrom, ^uiirded by a party of
I, in their way from Fort William to
iry* lie instantly applied to the com-
0(fficer, and desired leave to imeak
r sriiooer* TUlh uas at first renised
hf ibe officer, btfcauhi! of his orders, and
Ibe cBoliiied warrant thut \vn% shown htm by
teafem : but at last, with great difficulty , he
VMeUvvetl ij converse with the prisoner for
I bofir. The agent then found himself
to ride on, c^ven into the country of
iital lie uuLitit there search the pannePs
and t il of facta, &c. Bnt
•bat via bi* - , . when arriving at Au*
lkam*tke pa»ni4 »d wt^lling bouse, he tound ibat
hk iapa»ilflrici bad bff>n opened and examined,
Acit 4»tfiEfc»t liitit- i] out any warrant,
If Dear ralaaioas i)\ uiort, assisted by
iwirtary fon 4 away whatever
pftfstliejti lilt tbetr purpose.
Bfdmoetrsvi iKii u* imi tnry, where he met
of ibe paimcrs laN^^ers oci 3Jutiday
^irH tbe 7lh '-* w ^.-...1 .. ,r s r- the imh
h»U<. Tbry n to ihe
pumel; bot^u^ :„.,. ,.i, :.>ienoon,
•bea Cbera icmaim-d but a duy and a halt to
ila|aaa<f to mi'^^nv tnK tLKut lor the drawing
• ilale iv I ^ counsel for pre-
ibe proper inter-
I im the VT This iras a work
aordjr rcti|utrt*i '> bnger time» as
eaeiy ptranti uf the l»^ >rtce iu these
till are } end i the lav hai
k iiji al kAf t.^
L Cd
r 5t
express It: snd ihey tartiier admitteil, ns ibejrJ
must have done, that the chargin«t the panuetl
as being guilty, or art and part of that crime«|
is relevanl: lo infer the conclusion, and nec^s*
I aarily requires his being remitted to the know-
ledge of an assize, whether be is so guil^J
or not. /
And, on the other hand, I readily admit tul
them, that the laudable and just practice of I
this court, vf later years, hftth been, not to find]
or determine a particular relevancy upoa cer«
tain facts or circumstances set forth in the iful)«]
sumption, or minor proposition of the lihej,]
which is indeed, in some measure, to pre* I
occupy the province of ihejury^who are thttl
judgi'S of the fact, and is also dangerous to the \
course of justice; because, when a number uf J
facts and circumstances were found jointly re- j
levant to infer the pannePs guilt, it the least]
material of these should not be proved, %l* I
though a more pregnant circumstance, that J
was not specially libelted or expressed in thai
interlocutor, should come out upon the evi»|
dence, if the jury followed the directions ofl
that interlocutor, and adapted their vprdict ta I
it, the pnnnel behoved to be acquitted, thougb 1
in reality, and in their opinion, he was guilty, I
It was not, therefore, with intent that your'l
lordships should give your opinitm upon tber
relevancy and sufficiency of the facts and cir- ]
cumstances set forth in this libel, that thesa]
were so particularly there inserted ; but this
was done agreeably to some of the best prece* I
dents in the records of this court, for the fur- '
therauce of jnsliee, both iu respect of tlie pro- '
secutors and of the pannel : for the former,
that as the evidence to be brought is circum- |
staotial, the jury may be the belter enabled td
ponder the several circumstances, and connect |
them together, and attend to the evidence that
shall be brought for nroof of them ; and for
the sake of the pannel, that he, knowing tha
* As to the ustirpstion in this respect upon
the province of the jury which was practtseil
ita Scotland for a period terminating not verf
many years before (he time of this Trial, sea
in Mr. Hume's Commentaries on th< Law
of Scotland respeciiiig IVial for Crimes, tha
history of the charge of Art and Part (chap. 7}|
ami more particularly the history of the mter-
locutory of Rtlevancy (chap. 10). See also
A rBot*s observations, (in his Collection of Cri-
minal Cases, p. 174 ) already quoteil, npno the
usurpations which the Courts in Scotland after
the HestoratioQ exercised upoti the province of
the jury.
By titis usurpation, If I rightly understand
the matter^ the jury were precliiWtd from con-
si deri Kg not only the; le|L,'At '^uilt of the utfence
charged, but also the suthciency of the indkiu
alleged to prove that fact ; and their province
w as confinetl to the considcnitiou whether those
indiciu had beeti provedt Hi;p, as connecti^d ,'
with this, the passa^^e from Mr. H^inie ctted iti
a note to the conclusion if AIi. Brown's reply »
ia fav our of the paitoeU
71
25(M<:ORGE II.
7 rial ojjatita Steaiart,
[72
jiriiicipul facts that were to be proved is sup-
port ot' the charnre a&fainst him, might prepare
the evidence for his vindicatioo, and for ex-
ulaiuing those appearauces of guilt with which
lie was loaded, in the best mauner he should
be able.
Another thing concerning the interlocutor
to be pronounc^ by your lordships, in which
I most readily agree with the pannel's counsel,
is, that he should be allowed to prove the se-
▼eral'facts alleged for his defence, and evefy
pertinent fact or circumstance, that he or his
counsel think, may be available for proving his
innocence.
And thus far we seem to be agreed on the
terms of the interlocutor, if the tnal is at all to
proceed ; against \rhich one previous objection
tiath been made, namely i That this pannel,
mIio is only said to he ciiarged as accessary,
cannot be tried before the principal, Allan
Breck, be first discussed : in support of which
objection, they ^ave alleged certain passages
in 'he old books of the law, and sir Geo. Mac-
Jtenzie in his Criminals, title Ait and Part,
parag. 9.
' But to thi% I answer, iirst of all, that sir
George Mackenzie himself, in the passage re-
ferred to, furnishes an answer to the objection ;
for. af\er stating the question, whether acces-
saries can be suctl till the chief actors be first
discussed, and quoting the passages in the
Hegiam Majestatem, and other old books that
fivour the negative, he adds a decision of that
question in this court in these words : ^* not-
withstanding all which, Charles Itobertson
being pursued as accessary to the casting down
of a hoiiso, which was libelled to have been
cast down by his sons and servants at his coin-
maml, the justices fuund, that he might lie put
to the knowledge of nn inquest, although the
children and servants were not first discussed ;
because the act appointing a libel to be relevant,
bearios: strt and part, did abrogate the foresaid ;
4tli verse, 26ih chap. I. 4. H. IVI. since such as
are pursued, as art and nart, are all principals/'
This was the decision or the Court and the rea-
son of it, founded on the act 1592, chap. 153,
which enacts, *' That, in time coming, all cri-
lu.inal libels shall contain, that persons com-
plained on are art and part of the crimes li-
belted ; which shall be relevant to accu.^eihera
thereof; so that no exception or objection lake
away that part of the libel in time coming."
The author proceeds in the same passage to
I'ccite some part of the argiimeot previous to
this decision ; and says, <' That the advocate
alledged, it were alnturd, that the king should
be prejudged bv the absence of the princifial
party ; to wiiich it was answereil, that the king
was not preiudged, seeing, if the principal
party were discussed and denounced fugitive,
the accessary might be proceeded against."
Now this* is what hath been done in the
])resent case : Allan Breck Stewart htth been
called upon to stand trial tor his part in the
same offence, and hath been denouDced fagi*
tive for not appeariog to abide his trial;
which is discussing him as far as the laws of
this land admit of, when his person is not in
custo<ly.
But further, it is to be observed, that Allan
Breck is not charged in this libel with being
Uie principal, and this pannel as only accessary
to the murder of the deceased G tenure ; they
are both charged in the same words iVilb being
guilty, actors, or art and part of the said beinoiAt
crime ; that is, in the terms of the statute of
king Ja. 6, just mentioned : and though it be
true, that in the subsumption or recital of the
facts, it is said, that the actual murder, or firing
upon the deceased, was committed by Allan
Breck, it is also said, that this was d6ne iq re^
venge of the quarrel which this pannel took
up against the deceased, and in pursuance of a
concert or conspiracy betwixt the pannel and
Allan Breck, to take away the life of Glennre;
and such being the case, they are in reality
both principals. By the law itself (I. 15 ad
legem Corneliam desicariis)*' mandator dedis
pro homicidft habetur :" and the learned Ma-
theus, de Criminibus, in hb prolegomena, e. 1,
§12. '* qui mandant scelus, quique mandatusa
exequuntor, utrique rei sunt, et ordinariv niH-
dem pcense snbjugandi," and for proof of tnis»
brings many arguments and authorities ; and
inter alioj ** cum quis alicui mandat scelus,
raandantem quidem caput esse; mandatarium
vero manum, et instrumentum mandantis.
Hinc sacro quoqute oracolo ccedes Uriie Davidi
impingitur," U »am. xii. 9. in which text the
words of Nathan the prophet to David are,
'' Thou hast killed Uriah the Hittite with the
sword."
And indeed it seems not to be agreeable to
reason or natural justice, to hold, that, if this
Allan Breck, for instance, the actual manslayer
in the present case, instead of making his
escape beyond sea, as probably he hatb, had
died a natural death, and so become out of tbs
reach of all human laws, before this trial ooaM
be brought on ; and supposing the most direiA
and positive evidence could be brought, that
Breck committed the murder libelled, by the
counsel, command, or direction of tliis pannd,
or, as our old laws express it, 'out* hounded' by
him, that yet this pannel could not be brought
to justice, because truly, though the author, be
was not the very actor cadis.
But that such is not the law of Scotland at
this day, besides the case mentioned by sir
George Mackeu/Je, 1 need only remind your
lordships of the very last trial in the Court of
Justiciary at Edinburgh, of James Drummond
Macgregor, for hebg guilty, or art and part of
the crimes of hamesucken, forcible marriage,
and rape: for all which the trial proceeded
against him ; and though, in the crime of
hamesucken, he and his accomplices mieht be
all equally principals ; yet, in the forcible mar-
riage and rape, Robert his younffer brother, to
provide whom with a wife and fortune that
wickedness was committed, was no doubt the
principal party and actor ; and yet Robert had
been no otherwiie discnsscd than Alten Breck
73]
Jar Murder,
A.D. 1752.
[71
hu been m the pretent case, that is, called upon
ta abule his trial Tor these offences, and pro-
DOUDoed a t'ugiliTe for not so doinsf.
At for the argument which the counsel for
the nuinci have chiefly insisted upop, and
irlueo ihey have' professedly, and 1 think not
impropcriy, calculated for the jurors who now
bear as, namely, to impugn the relevancy or
aaffidaocy of the several facts and circum-
ilascefl libelled to infer the panoePs being
^'hy, or art and part of the murder in qui^s-
lioe ; I do not chuse at present to enter parti-
ealariy imo that argument, but to reserve that
tiU we come to anm op the evidence to the
junr, Mieh aa it shall come out in their presence;
which may poHibly in some articles be weaker,
aad 10 others stronger, than what is set forth
in the libd from the materials that we then had
bifiire ua ; hot io order to shorten our work at
the end of a long trial, and to en^^age the at-
teatioD of the jury to the evidence that shall be
Vravght before them, in support ot this libel, 1
beg leave now to make a general observation
or two far their sake.
h hath been admitted by the counsel for the
wt even in the trial of crimes, circom-
I evidence, when clear, is not only com-
petent, bat perhaps the most satisfying and
eoDvinciog proof of any ; and it was well said,
* that circumstances are inflexible proofs ; that
witncases may be mistaken or corrupted ; but
tUngs can be neither:'* to which I will add,
* See Burnett's Treatise on Various Branches
tf the Criminal Law of Scotland, chap. xxi.
See also to the same eflect Paley's Princi-
fks of Moral and Political Philosophy, book 6,
chap. 9, vol. a, p. 299, 8voed. of 1811.
1 csaiifass, it seems to me, that the compara-
tiie cogencv of circumstantial evidence has
^«a asmetuDes estimated too highly, and no*
Mad with perfect justice. <^ In this," savs
Mr. Burnett, <* circumstantial evidence (the
vitaeans being all credible) differs from posi-
lif^ that in the former there is not the same
nk of error and falsehood. Witnesses to the
6ei uMy be mistaken, or may falsify—* they
■ay err,' as lord Stair says, * through inad-
venoiee or precipitancy, and through the se-
ott insinaationa of favour and hatred which
Aey thenaselves do not perceive.' "
** Circumstances," says Paley, " cannot lie."
^ If the alleged circumstances, from which a
^ is calM upon to infer guilt, were to be
vitessed by the jurors themselves, these com-
■cadatioDS of circumstantial as contrasted
vilb direct evidence, would he much nearer,
tba they are, to the truth.
• Mr. Hume, (Comm. Trial for Crimes, vol. 2,
chap, zv, p. 237), treaU the subject with much
jsdgneot and fairness :
** J have assumed it," he says, " as a
lawful Iking to convict on circumstances
Mriy : and I will not liere multiply caseH in
psefefapoaitiun which boot only vouched
ky the whale Mries of oor-crimiDal records, but
that the competency of such evidence, for in*
ferring the ordinary capital punishment for
murder, was solemnly decided in the Court of
Justiciary at Edinburgh, in February 1718, in
the trial of Stewart A&rcrombie, for the mnr-
also is grounded in reason and necessity, and
the law and practice of all other civilized
realms. Certainly it must be allowed on the
one side, that in anv case of pure circumstan-
tial evidence, it is atways possible that the pri-
soner may be innocent, though every parti-
cular he true, to which the witnesses have
sworn; a thing that cannot happen, where
they swear directly to the deed, as done in their
own presence. But on the other side, such is
the difiiculty of contriving an apt and coherent
train of circumstances, that perjury is far more
easily detected in cases of thift description: and
thejust influence of the former consideration
is not utterly to exclude a sort of evidence,
which is often irresistible to the mind, and
which, with respect to many crimes is tbe only
sort of evidence that can ordinarily he obtained;
but to recommend to jurymen the propriety ot*
caution and reserve, m which indeed they are
seldom wanting, as to the sufliciency of the
presumptions of guilt, on which they are t6
condemn." '
Undoubtedly, each sort of evidence fur-
nishes cases of very various degrees of strengtii ;
but in considering the merits of the two sorts,
it seems not to be a legitimate procedure, to
state on the one hand a very strong or a very
weak case, without stating on the other, a case
as nearly as may be, of correspondent strength
or weakness. When it is said, *^ witnesses
to the fact may be mistaken, may falsify, may
err through inadvertence," &c. it should be
recollected that all this is not confloed to wit-
nesses of direct facts, but extends also to the
witnesses of circumstantial facts ; when it is
said that circumstances cannot lie, it should be
recollected that the relators of circumstances
can lie, and that circumstances themselves
may deceive ; when it is said that the concert of
a number of persons to impose on a court of
justice a tissue of manifold falsehoods is im-
probable of contrivance, difficult of execution^
and easy of detection, it should be recollected
that circumstantial evidence contains not al-
ways either numerous circumstances, or cir-
cumstances which are attested by numerous
witnesses ; when it is said that circumstances
trifling in themselves may by concurrence .su-
perinduce decided conviction, it should be re-
collected that the more trifling in itself is any
circumstance, tbe greater is thc^ probability that
it was inaccurately observed, and has bc»n er-
roneously remembered. It is to be hoped, that
false witness is not oflen, either by design or
thn»iigh misuke, given against culprits. It
should however always be recollected, - that
this is the only fallacy to which a judgment
founded upon direct evidence is liable ; whereaa
■ jud^^ment founded upon circumstantial evidence
is liable not only to this fallacy of false witnea^
75]
S5 GEORGE II.
Trial qfJawet Stewart,
[76
ilcr of Atexander Hay, Mm to Mr. Robcirt Hay
01* Nau^btou \ in which the art^ument was
treated with great learuiog, aud full infomia-
tJoiis on the debate wrillen by the now lord
proaident of the court of aeasioii, who was the
prosecutor, and by the now lord justice* clerk,
who was of counsel for the pannel. And I
mention that case, which 1 have lately peniseil
in the record, to rive your lordships and the
jury aspectnenof a circumstantiiil eridenceof
murder, that, in iu general nature or com-
plexion, was Tery simUar to the present : the
case, there, in short, was, that some days be-
fore the murder, Mr. Hay, the deceased, and
SlewMt Abercrombie the pannel, had been, in
company, when Hay complained of an atfront
given hun by Abercrombie ; upon which no-
but also to those of false inferenoes-^iu other
wordS| that direct evideuoe, if true, cannot pos-
sibly mislead, whereas circumstantial erideuce,
though in all its -parts most strictly true, may
yet mislead most grossly and most fai^lly.
Mr. Burnett, in his chapter (sxi) on Pre-,
samptire EridtAce (p. 5S8), notices that,
" Beccaria mentions a singular practice
which preraiM in the parliament of Tboulouse
of admitting fanciful numerical estimates of
inconclusive circumstances to make out a le-
gal proof; thus, « hearsay might be a quarter ;
anoUier hearsay, perhapa more vague, an ei^^hth
of a proof; and thus, what is no evidence, might,
by this artificial and absurd combinatiou, be
made to amount to legal pi oof.*'
It is observable, that from about 1690 to
about 1796 (see Hume's Comm. Trial for
Crimes, chap 10, vol. 2, pp. 49—67,) a prac-
tice of a nature somewhat similar to that of the
practice which Beccaria relates of the parlia-
ment of Thoulonse, seems to have prevailed iu
the courts of Scotland. It is thus exhibited
by Mr. Hume (p. 6 J). *•* 1 cannot propo^y
Miit to mcotiiin, that this fashion of wei>;hing
artictdately the several presumptions in a hliel
proved the ground (at least 1 can 6ud no other
account of it) of a still more irregular ground
of judgment, which was thus : At the same
time, that the whole presumptions libelled
wero found jointly ivlovant to infer the pan-
iial*s guilt of the crime charged, S'ld to sub-
iect him to the full |iains of law ; separate re^
levaocies were fouiid of arbitrarv and inferior
piuishmeiit on these prosumptions severally,
or certain moro limited combinations of them.
In some situations a judgment of this sort may
no doubt be proper, and suitable to the rase ;
because it may happco thai a part onhr of the
particulars libellea aro suffineut, of them-
advea, to iafer aoBie lower d^^give of guili«
and Gonstitnta an offence of its own kind,
■nch as descrvei ami may wamMabljr roeeire
r Iha liM wIhgIi k in cowt,
iTii belaid iatlMproiMrforoi. Ifalib^ati
thing then ensued : but, just before the murder,
which hapiiened about uine at night of the 6ih
of December 1717, Abercrombie was drinking
in a tavern near the head of Black-Friars wynd,
when Mr. Hay came into the bouse, and made
one of the servants call him out into another
room ; Abercrombie went to Hay, leaving bis
hat in the room where his company were;
they went out together near to a lamp at the
bead of the wynd, where a scuffle ensued be*
twizt tliem, without either uf them drawing,
though they had both swords ; and, duri^r
this scuffle, Abercrombie drew his sword, and
run Hay throogh the body, who was heard orjjrt
He was murdered, and bad got foal play, hm
sword not hating been drawn; and soon after
dropt down dead : Abercrombie was still witbom
responding to these several charges, certainly
such of these presumptions, as amount to evi-
dence of the attempt only, may regulariy be
sustained to infer some interior correction, m
well as the charge of fire-raising to infer tba
higher pains of death and confisnlion of good««
But the practice to which 1 now allude was
something of a quite itificrent character, and
far more difflcult to be defended, viz. the find-
ing of a rdeiancy for arbitrary punisbmeat,
in respect of each or several of the presumptiQas
of guilt related in the libel, oonsidmag Ihtai
as founds only of suspicion, or dreamstaDOSS
of evidence, oF the capital and only criiaa laid
in the libel. Sti-ange as it may seem, tbe law*
yers of those times appear to have reaaoacd
thus: that if all the presumptions libelled wa«
jointly suficieot to convict the pannel of tbe
full charge, and to fori'eit his life ; oeitainly
each of Siese. of itself, implied at least sope
sort of concern in the guQiy deed, and justly
exposed him to chastisement less or more."
See somethiDi; concerning circumstantial
evidence, vol. 16, p. 650. Vol. 17, p. 14Sa
See also tbe Case of Barbot, vol. 18. p. 1S90.
The geceral opinion in Scotland seems to be,
that Campbell was not killed by Allan Breck
Stewart, but by Charies Stewart the pamidii
son, who afterwards became a shoe-maker in
Edinbuigb, where he died. It appeared to ma
that some doubt was entertained in Seodaod
whcthtT the pannel had any partidpalioa ia
tbe slaughter.
As to the maxim. "It is bctur that Vm
guilty men should escape than one innoosai
sudvr," see vol. 7, p. 16S9, and particalarly
sir Samuel Komillv*s admirable remarlts.
•« Unless," says Jo&nsoo. ** civil institntMBa
ensure protectwo to the innocent, all tbe coa-
tidence which mankicd shouU have in then
wtHild be k^M.** See Bwwetl*s Life of him,
vol. il. p. 4r9, 4to, 1st ed.
in a note la Eunomus, DiaLnpK 111, p. fifiS*
A aditsoo, lufcicacs v made to •« aa
|7T]
Jhr Murder*
by no perwn who knew
lira souffle ; they only saw ibe
willitttlt the lut fttub tlie other who liatl
■•i, mfxer hit bad nW^^n the woumi, in>
nf rttttrttiui^ to I ny where he
Wfiysbftt, called <i lavern, vrhere
%» ti0r?»*t4 a hut, iind utut directly to his
>nO iij bed, uhere be ^vas^ (hat
lo Iftw lib r him, «U the circiim*
inculafiy set forth ; and, in the
br the proseculor, there is the fol-
which 1 have extracted, and
b^ leiv« hm lo read i ** The paonel trusted
^ -*-- dlaridicsf af ih^ nighty and secrecy in
be IimI commited this crime, as sufficient
^ jt bia fre^m the eye ot juitice, and pre-
vivt Ins |iiiiibhmrtit ; but that same wise pro-
♦ wbioh to m«f times lea res men to eate-
lb«if wicked il^ti^nn in !iuch a manner,
uQ^sr tueti cifcumstancrA, as eroboldcns
to ipt rm with hopea of impanityi fre-
I? brio^ftliuac very critiies to lijbt» by a
Iff imcofery r>t unforeseen incidents
ciremttaces, concurring: to Hx the jET^iilt
lb» eHin&iMl, with more force of con vie-
ml «ii«oglli of efidence, than two con-
could ^vo» on purpose to
biee tbr world bow hltte darkness or se*
in b# r«lied ^n, either as corers or
to wickedness,
ihm case of thin pannet : had it not
fem bj tli« ««iiall chance of his leavincf his bat
it Ibf riMiii with (he company where he was^
»bt« Hb came forth to perpetrate this crime,
li aiiglfl bate gone off u ndis covered .>- But
thai hmII acodetit, first indeed taken r.otice of
hf m ebiUf who obBcrred tbo bat in the cellar,
ll to bf Mr. Abercrombie^s, fed thone
to a f^n (iiAcovery of stich other
ici' r; B apposing' no p 0-
ibWt fmof et 1 appear, are more
^k§m taikimT to ct^nuernfi the panocl in the
fywif CPvy jodcrc and jury, and of every per*
9m ifci wfia wilJ lav himself open to receive
ftwn trutli."*
'art!
^ Tb« IfiuHoentor of relevancy in this Cafie
if Abfrrmoiiie (Fab. 0, 1718) is thu^ Lnven by
Vr> Ifttiiw (Ctttam. Trial fur C i|f»
1V*0|. 1, a. M.) '<TlieLor*ls, the
■fl aaaofn bta having about the lime aud
llbtttalad ff^irrn Alexander May the defunct,
iiiUlfpartt ' ' weapon, a mortal
I. net within a short
mU piinnel was art ami
infer the pain of death,
' •" '. ■ ■ ' ■ "j'.7i,
■ ivt
jind that the p^iu-
. D httle bribre liie
tiouie or cellar of
M-rwod in lUo room
be left
:jy with
ccibri did lea? e be*
lalaanh*^)'
biflhal tliTJ'
ibtilrfiiaei i^
M Ibp defii
arf. wirti ibt .*'
mm4n, aM»o Ift^i
Ufa. Liwdmy^ aini
•ilb ibna I and il <
Ir. CbieHnr an^^
•bmbaim^ •!» aaid
A. D. 1751
Ttie jnry in bis case were of that dispo»i*1
tion ; he was convicted of the murder, and sni^]
fercd for it.
Another remarkable instance of this natareg J
was the case of Alexander Maccowan, who wasl
trietj by two of your lord8hi|j« here present, if J
tlie circuit held at Perth in May 1750, lor thfl
must horrid murder of Margaret Maclean » and
of Marg-aret his own child by her, an infant <
about tbi-ee or four years of apfe, committed in
Augfusi 1749, not far from Ci ief, in the shire 1 1
Perth, in a ihickei of wood, where he lef\ thetrl
bodies, after hnvin^j carried away the monevi
and clothes which the said Margaret had along]
with her in a bnndle. Before tlie bodies wer#|
discovered, they were m manfjlid, that tbe^l
oontd not bo known, otherwise thau by the]
clothes which were on the Iwidy of the woman,]
which her relatinris could swear to: the evi-l
dence against the pannet was wholly circum«|
stantr^l, and consisted chiefly of there being |
found in his possession, atler the murder, ft]
pair of stockings, a linnen shirt, and a muslin i
stock, that were proved to have been in possea*!
'sion of the decea.^ed when she set out for Edin^j
burgh, where she had told her relations, sb« f
bad heerf invited by the pannel to go along,
with him, in order to their being marrietl toge^l
ther; and, upon this evidence, he was con* J
victeil of this double murder and robbery ; andf^i
opon your lordships' sentence, suffered lbm\
[Kinisbracnt tiiat he so well deserved.
My lords, it apiwars to me, that the present]
case affords a fresh instance, similar to these 1 1
hare mentioned, of a (irovidential discover? oM
circumstances, serving to fix the guilt ot ac* f
cession to this murtler upon (he now pannel, j
notwithstanding all ihe precautions by hirtni]
used to conceal it: his enmity aqfainst GlentirCh]
for ivmoviog him from bis own po^ession inj
May 1751, and dii^continuing to employ Itinil
in the management oK the Ardshiel estate, wwirl
well known ; as likewise the various efiorts h^j
made to prevent the removing of oertiin tenanti J
bind him his hat in that it)om ivbere tbe com-
pany was, where tbe same remained till af^r tb^i
defunct came in woundetl into the cellar, and I
that two persons were seen come out of thai
said cellar ; and after they came otit, wera j
seen go on ijuarretUng, one of whom wanted ]
his hat, and had a light or brown coloured coaf^ J
with clt'ar buttons upon it, and that ttie pannel 1
had on him such a coat that night, and that the I
[lerson without his hat, and with such a coat i
said is, was he thnt gave the other a stab or]
wound ; and that the person wounded, and re* '
turnincr back to tbe said cellar, were [So Mr.*
H ume] the defunct, and soon after of his wonn^ J
die<l ; and the pannel, about that time, called it f
Mrs, Johnsoo's house in Niddric's Wynd,]
without his bat, and there borrowed one, and]
soon ihereaAer was seized in bir owti bocne^J
and a ^v ord found by hrm in tbe room, f
and Hith fresh blood tn Ihe hollow parts of it, all I
jointly relevant to lufer the forc«<ariI pains, and re* ^
pel the baill defutices proponetl for tbe panaelK"
0
79] 25 GEORGE IL
fiF Ardshiel io the month of May last; and also
JUis iDtiroacy and close connelion with Allan
Breck Stewcrt, who disappeared abruptly im-
mediately after the murder, and to whom the
Toioe of tlie whole country imputed the actual
murder itself: but as, wlien that happened,
this panoel was at his own house, -at the dis-
tance 6f one mile from the place of the murder,
the more direct and immediate etidence of his
accession to it was long^ concealed: his wife
and his daughter being examined upon oath
before tiie sheriff depute of this couutv, on the
S2d and S25th of May last, touching, what they
knew concerning the murder, de|K»ed, That
Breck Stewart left the pannel's house oq the
morning of Tuesday the 13th of May, dressed
in bis French clothes, and that the paonel had
no such black or dark -coloured short coat, as
.Breck had truly \e(i his house dressed in, for
three quarters of a year before that time ; but
at length, above a month after his examination,
namely, on the SOth of June last, Alexander
Stewart the packman, being examined before
the sheriff- substitute at Fort William, and after
being confronted with a friend of his own, ttf
whoui he had l>een muttering some part of the
truth, spoke out the whole truth, as it is set
forth in the libel ; and particularly, that from
this very wife of the paonel he received, on the
evening of Saturday the 16th, at the pannel's
house, Allan Breck*s French clothes, to be
carripd to him at the place of his retreat, toge-
ther with the five guineas, which the pannel
had been at great pains to scrape together, after
sending the |»ckuian express, for that purpose,
to his friend William Stewart at Fort William,
and which he sent to Breck at the place of his
retreat, with a declared intent to put him in
condition to make his escape, for that be mast
be suspected of the murder: (his discovery 'Vtras
the first thread which the kindred of the de-
ceased got hold of to lead them to a more full
detection ; and was afterwards confirmed by
the examination of the bouman, who told the
Earticulars in the libel recited, and about whose
ouse the very clothes were found, the pro-
perty of the pannel, which breck had brought
from the pannel's, and left with the bouman.
And as for the importance of these particu-
lar discoveries, which the pannel's counsel
have endeavoured to diminish iu the manner
that circumstantial evidence is always im-
pugned, by observing that each article taken by
Itself is inconclusive; 1 may readily admit
this, and yet, from the result of the whole cir-
cumstances, there may be convincing and irre-
sistible evidence. And to meution, at present,
only these two material ones, of the clothes
iumished, and the money SLM»t to Breck
Stewart, before and after the murder respec-
tively ; i do not say, that if a man lends his
neighbour a coat, in which the borrower being
dressed, two or three days after commits a mur-
der of a person who was his own enemy in
liirie past, that this will afford any evidence of
pri.vitv, or aooetsion to that marder in the len*
der or the coat; nmther do i say, that if a
Trial of James Ste%vart,
,[80
man's friend or relation- has unfortanatcly
committed a murder, and one shall aid him, by
money, or otherwise, to make bis escape, tliat
this will render such friend accessary to, or
chargeable with the crime of murder, though
he is doubtless guilty of an offence or misde-
meanor in its own kind;* but the force of
tliese united circumstances in the present case,
with the others charged in the libel against this
pannel, consists in the connexion of the whole
together. It was the pannel's proper quarrel
that retidered the deceu izi\ obnoxious to Oreck
Stewart; the pannel had discovered and ex-
f tressed his entnity against the deceased, and
lad utiered threatenings against his life; Brack
Stewart, his intimate friend, was a fit instru-
ment for such wicked purpose ; he had es-
poused all the pannel's. opinious .and disposi-
tions towards Glenure ; he was, himself. Ml
in condition to remain in this country, and was
already provided with the means of subeistciMi
in foreign service ; and to this man it was, io
the very heat of a contest with the deoeassd
about removing certain tenants which this pea-
nel had put in, that he furnished the dress, sad,
as we likewise believe, the arms wherewith he
per|>etrated this foul murder ; ' immediately
after which he retires to a desert place, oAt nr
off, there to wait for a supply of monej tfaiA
was to be sent him ; anil it is especially to be
remarked by your lordships, and the jury, tha^
as the libel bears, at this place, Breck told the
bouman, that he must go to Fort- William mA
a letter to William Stewart, merchant then^
who he said would give him money npon re-
ceipt of the letter ; and this Williain Stewart
was ar.other intimate friend of the pannd*^
and the very person to whom, the day after the
murderi the panuel sent the packman exf
to get five guineas for the use of Breck,
was alMut to leave the country. This dro
stance affords a demonstration of a cuncnti^ ^
twixt the pannel and Breck before they hH
parted at the pannePs house on the Monday
night, or Tuesday morning preceding ;'-ata
which the pannel allows he never saw Brack; )
for how otherwise could Breck have known,
that, for such a small sum as he wanted, ths
pannel was to have recourse to this Willisa
Stewart, who lived twenty miles distant fraa
him ? And this circumstance serves to ooa*
nect the facts which immediately preoedsd
the munler, with those which ictmediately en*
sued it.
But I am going too far at present, on the co»-
siderations that will be proper for the jury after
the proof shall have been brought before l*^
and shall now conclude, hoping it will
to your lordship.s, that no sufficient of
hath l>een offered on the part of the
why his trial should not proceed; and i
you will make such interlocutor as, upon 1
supposition, the counsel on both t '
to be agreed iu. i
.IM
* See Burnett on theCriminilXAWiffl
land, pp. S86, et Kq.
mA . •
"J
' Mmdcr*
ffftj^llt^ fbr the Fannel.
Lord Justice* General^ — I appear as
i6r the prboner al the bar : and, as 1
ibVe tkis trial muftt draw oat ta a very
laBgttt^ aritl occa^jioti a \Sff^i ileat of
InxiJile to your loid^htpfl, ami the
Jl riuieavour, in wbat 1 am to ofler«
rvpetJtion ; and I »baJI cotifine my sett'
1i«ii«kBcr«BUoos«ft D^oflt afl'ected my own
miti iftfio reading the inriictment, u^fnch la
IkiMly rsic ty which 1 can judge of their
^ymniiii And, 3iily« 1 shall offer a few
ftMftlwKbocia by way of reply to what has
liM Mid by my lord ailrocaie ami hb assist-
aaiiL in tapport of the indictment.
The pri^oiier is charj^ert hetbre your Un\-
d»lpl at accessary, art and part of t lie murder
(i(tlif Ute Mr. Campbell of Glenure ; a crime
if to |i»al and black a oalure, and attended with
Msb fiafttcular circumHtances, as has not ouly
jttiUy rjccited the atlention of the puhliCf but
alia a ature than ordiuary keenness iind ardour
^tbe aameruuf friends aod relations of the
I, in carrying oQthi«i prosecution.
1 would not chiiae tn make any reOei'tions
1^ tkeir criuduct. 1 sincerely sympathize
vilh tbefn for their locsy and fe*^! ilte full force
</ their just revea^ againal the euitly person,
vbtefar be is. But. toy Inrd, in such a case,
IbifiaMMm which we at iirst cherish as just
mi tiaooiirable, may get the better of us ; and
if Ibe r«;a\niiutd of reason and strict honour are
tot H^u{ivt\. will inscnsibty rise into raf^Ci and
ti > into measures inconsjMtent wilb
^* diclalea of cool humanity.
My lird, it is in iucti circumsiances as these,
tbiA fltcQ the innocent may sometimes be
kitMigkt iuto dao^r. And in surli circum-
ijiofaa ilbecomefl the duty, and an honourabte
|ttn of the duty of one of my pnifession, lo
afi}iear for the accused, to assist him in his
|bbL defetice, and to obviate, liy all the reme-
ilei irbicb the law ha^i provided for the secn-
iky of inooceDce, any di sad rant age he may
balrougbt under, by public prejudice, or hv
ikcaumber, power, or superior address of h^
pntire prosecutors.
This cooaideraiion determined me to appear
iitkii trial, and to give my poor assistance in
dtltnoe of the prisoner ; to whicb i was
irompted by my lord advocate himself,
the generosity so far to interest hicO'
ttflnlbe panuel« as to rt^ctHnmend it to me,
■WMitothera, to appear iu hisdt:fence.
Mm lirstf I observe, that it is admitted by
Ikt pfoateutors in I heir indictment, that the
Mw^NU munler therein charfired was perpe-
Saled by one person, to wit, by Allan Breck
ik.N < ! (ukin;; liim lo be the guilty per-
iDii no doubt<, justly forfeited to pub-
tuce, inough in the mean time be may
scaped frum the eaceculion of the law.
first <|uestioii therefore that must naturally
■Qcor, is, %ih!Lture the circumstances in this
«He, whicli should lead your lordships or the
|vy tii beUeirei thai any other peivofi than
A.D, 175fc
Altaii Breck, and particularly the prisoner all
the bar, was also guilty of this foul «nd d«^
testable murder ?
It is a rule in philosophy, in all our in*
quiries into natural causes and e^Vcts, io resii
satisfied tto t^oou as one cause or principle is dia»j
cotered, suificienl for answering and solviu^I
alt appearances in tlie effect. This rule, I am-]
sure, with great propriety may, and ought t^l
be applied to any moral or judicial inquiry, |
such as the present. If u crime is committed, j
there mu!»t, no drmbt, be a criminal ; and if]
the crime itself, or the circumstances whicb at- J
tended the commieisiou of it, are of such a ii»* |
ture« as must uect^ssarily infer the aid and )
sisluifce of others towards the commission of itg !
as the appearances in such case will not be an* |
swered by tbe discovery of one guiltv person^ j
the j»ind will remain unsatisfied till further 1
discovery is made of tbe supposed partners oCJ
the crime.
But, my turd, where the guiU of one wiil
account for the whole appearances, for everjf 1
circumstance connected with the crime, ( aji- i
firehend it as a rule in morals, it is a rule ia j
aw, aud in sound reasoui to presume, that nc» j
other but that one person was cuncerned In thft ]
commission of the crime.
This presumption is founded in tlie resped j
which we owe to human nature. For, my
lord, wicked anil earriipted as mankind are* |
thank G^hI, a omrderer, a %vilful del iterate •
raurdeier i^ si ill a monster in the species ; and
it is undutiful in its, and against all the rules of
riifbt rea^ou, to carry our suspicions, far mor#:|
our prejuilices, further than the corpus deikti^
aud the circumstances attending it, do necessa-
rily point out.
From this couMderation, I hope, ibe prisoner \
comes tu your lurdsUip.^^ bar, atlendril aud aided -
not only by the general, legal presumpiion of j
innocence, but with this other more special
presumption, that no other person i«as coo^
cerned in this horrid murder but that one uerson,
whoever he was, who gave tbe fatal siiot b'
ivhich Glenure died. And this prt^sunijition
dotier myself^ will be present with joni- lord*
ship, an3 in ihe mind of every juryman, tiH j
contrary proof and evulence shall beat ti outs
whicb we tlatter ourselvef; will be so far frooi
bappifuing, that, on the contrary, iu the course
of tbe evidence, it wili gather strength, and al
last terminate in that issue, which from the
huly providence of God, theinooceot may with
confidence expect.
My lord, it is not tny intention to anticipate,
or to argue upon evidence whicli has not yet
been brought: but, as my Lord Advocate hat
set forth, in his printeii indictment, a va*
riety of circumstances, fr«im which he -wuuld
infer the prisoner's aoceaaion to this murder ;
I must beg leave to take notice of some of ihctn.
in order, if possiible, to dispel that popular aud
illegal prejudice, which L observe in mostcasea^
eapeciaJly in the more atrocious crimes, doet
attend the unhappy person who is brought ti»
your lordships* bar, ^
G
rf'
S3] S5 GEORGE II.
When the miud it enraged to a high de-
gree, it naturally seeks after, and is impa-
tient to find, an object tor its resentment.
The prisoner first occurs, and there we are too
apt to fix our opinion of guilt, and alongst
with it our resentment ; esiiecially when our
confidence in the public prosecutor is so great,
as it justly is at present in the honourable gen-
tleman who fills that office.
■ This, if I mistake not, is the source of po-
pular prejudice against the imhappy prisoner.
All of us are subject to it, because it arises from,
or at least is incident to human nature ; but
however innocent it may be in the crowd that
surrounds us, it is dancrerous, it is criminal, if
received and entertained in the mind of a jury-
man. For their sakes, therefore, 1 will beg
leave to make a few observations upon the facts
charged in the indictment, that so the jury,
ivho for some time have had the printed indict-
ment in their hands^ mav, before they proceed
to trial, be also iiossessed of such facts and ob-
servations for thepannel, as will, if attended to,
entirely take off the force of the circumstances
ivhich are charged against him.
And first, it will be observed, that the murder
is not laid to have been committed from sudden
BassioD, or chaud mellti, as the law expresses it,
Dul to have been premeditated and resolved
upon for some days before it was committe<l.
JNow, to render malice of so high a nature
probable, tome very strong ground or cause
ought to have been assigned for it ; and what
cause is here mentioned? Why, 1st, Because
^tenure bad accepted of a factory from the
crown upon the forfeited estate of Ardshiel.
5dly, Because Glenure had removed thepannel
Irom the farm of Glenduror at ^Vhitsunday
1751. And lastly. Because he was proceeding
to remove certain other of the tenants of Ard-
ahiel, at the Whiisunday 1762.
The first of these could not be the ground of
the resentment which gave occasion to the mur-
der ; because Glenure had been in that office
for more than three years before the mordtrr ;
during the greatest part of which time, the
pannel and he lived in friendship and intimacy
together ; as will be clearly proved by a long
course of letters which passed lietwixt them.
The pannel's own removal from Glenduror
could as little be the cause of such prepense
malice ; for the removal was voluntary, and
the possession yielded to the succeeding tenant,
in consequence of a previous concert between
the pannel and Glenure. And far less could
the intended removal of the other tenants at
Whitsunday last, give occasion to the conspi-
racy and BMinler charged a^inst the pannel.
Such deep resentraeiit could not have ariteo
from so trifling a cause in the mind even of a
wicked mas, mnch leai one of the pannel's dis-
position and diarader.
Sdly, The drcomttance of Allan Breck*a
having chai^ his dochcfl at the paonert
boute before the murder, though it baa been
chiefly intisted oo for inferrinff the pamiert
MCWOD 10 the mardcr, ii cqoilTy '
Trial qfjamei Stecoarif
£84
Allan Brock's situation, as a deserter trom hit
majesty's service to the rebeb, and after wards
to the service of France, made it necessary, so
often as he came into this country, to skulk
amongst his friends, of which the pannel unfor-
tunately happened to be one. It will be proveo,
that for this purpose, he used to lay aside hit
French dress, and borrow the dress of the coun-
try, such as is described in the indictment, from
any of his friends, where he happened to visit
or reside ; and that he had gone about from
house to house, changing his dresi in tbit man-
ner, since the beginning of March last, and
]iarticu1arly had been furnished with such
change of dress at the pannel*t house, about
the beginning of April, where he bapnened to
be for a night or two, in the course of bu visitt
through the country.
Mv lord, if these facts are proven, it is im-
possible any weight can be laid upon the cir-
cumstance of his having also changed bitdrttt
at the paunePs house, upon the Monday and
Tuesday before the muitler happened. If a
disguise had been intended, would the paiuiel,
who is a4mtUed to be a man of more than ordi-
nary discernment, have furnished hit own
clothes, which were known to the whole neigh-
bourhood, and by which, if the murderer was
apprehended, he hirosell behoved infiillibly to
be discovered ? Would he have dreated up tbo
assassin before his numerous family and ser-
vants, in the very dress which was toaerve fw
his disguise, two different days before the plot
was to be executed ? Or would he hoTe allowed *
him to traverse the countr}* for some milci
round, from Tuesday when he lef^ the pannel'i^
till Thursday when the murder was committed,
in the very dress which was intended to dis-
guise and conceal him ? Snch a conduct it un-
accountable, and cannot he ascribed to the pan-
nel, whom the prosecutors themseWet repretant
as a man of the deepest desij^^n and artifice.
BIy loni, the next material circumstance in
the indictment, which I would beg leave to
take notice of for the sake of the Jury, is the
correspondence which passed betwixt the pan-
nel and Allan Breck the supposed murdeier,
afW his retreat to Rualisnacoan.
This circumstance, 1 own, at first tigbt|
seems to carry great weight against the pannol,
because it imports not only aid and astistanoo
^iven by the pannel to the supposed murderer
in order to enable him to make his escape, hoi
also a previous knowleiige of the place to which
he retired immediately at\er committing tlm
murder. But your lordships and the jury have
heard how ihe force of this circumstance is
taken off. The pannel knew noihing of the
place of Allan Breck*s retreat till the iky after
the murder, when he received a message from
him by Donald Stewart, giving him notice of
the place to which he had retired, and bciccch
infp tlie pannel to send him a small supply cf
money, in order to carry him off the counliy.
This message the pannd has undertaken, and
hopes to prove by a train of unqueaiionaUe eri*
deuces ialif bethoUbenbiclobcingniilii*
85J
Jot Murder*
Mif fHQf lilt flu^. It will M ODce strip llie id-
^JHMOlQf tSie only ci re ti instance id it, wUich
H^^bli. ai A previoas conB^iracy hetvrixt the
H^^^il ia4 All«a Bf«Gk ihe supposed murderer,
■ ~ kmi jrfMil, my lord, iudenenilant ol' tbe
, fiOiCwWdb l» proposed in he biou;jlit bv llie
■ p««ii«l, it oniiot but appear unaccountaGle to
B yoitr londibJ|ii ftnd the jury, thot a p^rsun of
\ UisiBSBCl*s imgiicity, li' be had beeti in con-
Albu Ilreck for KuverJil d^ys befure
oi'tlie murder, should not have
■eeenary means of Breck'ai
ttope liU after the crime wa« commit led^
whm ht GMtld uo tuuger curre^pond with him,
williMit ilir intcrpoflition ut' otlieici, aud coa-
lniattlJy without th^ hazard of a difldovery,
IW Mtad eonld have h:id no difiicuhy to
liate rtmutlicU Allan Breck with a hUle money
I Mm tll# OMDmtiaioo of the murder, in order
to (nalbr kM tacape iuuncdiately. He kne^
Ikvek^s ciretim«ttAnc^'i, Rtid that he hud bo-
llMBg IQ CMT < >uoLry, aud Breck
iMcJd fiPt ; in such a serf ice
willNBt Pierv I ui^ tioin iih employer Ihe nc-
€mmrf wof^UAWT bis o«?ii si^tety ; and sup-
IMurt^ fiuuiel had not been in caib ujmii
iW BlAOiliy, when they last parted, yet he
«pn14 bata ukia care be lore the Friday lo
kart' kveo ai^fficieoily iirofidi^^d for answering
fircck^ dcviajids. 4ml yet, upon the Friday
ate iba raiirdery i»ben the message cdine
Orwck, we Hcid fVoni the itidictment,
ibft yaAoei sr d inlo Fort-
p ftilfiflAii, «t a co'> ace from his
in oriitu lo liorrtm the trttle ol'
which wa^ wauled, and scut thedav
k.
Hmm : n as to blame in sendinj^
wamrjUt Muti tiieck, who whs his rilaiioiiy
nikarf k«eii hi)^ ward, in order lo euahk' him
to ttlba UtK ' ' < '!-upon the opinion
kailMAln4^ Jty or iiHioceot ol*
•e*»r* - fv.itwas
• liM 4 law;
a Sfliifffsr, Uiough koowinf^ly, will not, iu
ka, ttf la ll»e nature of the ihtnyf, infer acce^*
iiB In tlhc Hiurder, unless A liad been pre*
ttPBlf promt^rtl an on encourai^emeut to ihe
'mm 0f the mnrdv-r, wbicn, from what
mMf appear* covld not hare been the
^Kk regmrd to the threaieniogs, which is
^•ly rrmainlni^ bmnch «if the indictment of
aay ''vicl*^ aifitnat Ihe pnnncl, 1 could hate
*«M »| lord advticaie had been so gt^od^ as
lilmaOMltaccoded upon the purticuLr ex-
fMMOt, ai»d ijpnii ' r f H when
•ai •!!«» tb««9 v« a in not
litr, it ii Miipoaail <i uiake any
ilkv aimtr bat .. l oi this pari
i^tkaHlar]|»e : -'" "mv l»e never
aiMlatftvd II ' hopes,
ili !• prr»i nljj^ht nf
Mf tA^ iittii^ which cotitd
ii^avt ft ng to take away
lhMt«l OB iiiooMBtii gvniieiiiaQ*
A. a 1752. [8(J
My Tonl, hating' touched upon a few of the
roost materia) circumstaoces in the indictment,
which 1 thought material for the jury to hara
iu their view, in order to direct their attentioo,
during the course of the et idence^ to the phui
of the pannel*s defence, I shall next proceed
to what at present falls more immediately
under your lordship^i consideration, and that
is, the olijection which has been moved to the
competency of thi^ prosecution.
it has Wn objected, that the indictmeui
does not chari^c ihe panoel ojt a principal in
the murder of Glenure, but only as a remota
ticcessary, by previous counsel, and subsequent
aid and assistance given to the murderer in bia
escape ; and that though such accessary 19
equally criminsl and punishable with the prin*
cipal, yet that be cannot be brought to tria'
till the principal be tirst tried and convicted.
This objection was stated to your lordship*
Upon the authority of the old books of our
liiw, sir George Mackenzie, our only auihor
upon crimes, and of several of the fureig^ii
doctors who treat of this subject; and, wjiU
your lordships^ permission, l|i%ill read some of
the passages upon wliioh ihe objection ra
founded, aa 1 have taken ihein down t'rom the
books.
Ileg* Maj. lib« 4. cap. '26, de ordine cogni'-
tionis in criminihub, — ** Si dii«l hnmineii IWiint
implaciiati, unusde nrincipali fuitn, et alter de
prsecepto, primO denet ilie qui defumatur de
factfj, quam ille qui factam illud coaimitti
priecepit, implacilari,'*
To whicli the learned sir John Skeene sub^
joins the following aonotatioo ; ** Complices^
criminitf non posi^unt accusari ante principalem
malefactorem, nam sicut remoio priucipati
removetur accesaorium, ita absoluto malefac-
toi-e ahsulvuntur complices et consenlientes.**
Quoniam attachiumenta, cop. 83, de recep^
iatione latrocinii. — *' NuUuh delaoiatus tan«J
qunm receptator latrncinii deliet puniri, aut^
i|nHin ma)efd{'ti»r fuerit cnnvtctu^ vel attayiitu
de tairoiiniofllo ; et hinc Bet ut dicitnr consen^
tientes et at;ente« pfiripcenS puntuntur.'*
Statuta Davidis 2di, cap. IC^, Ctimplices nod
debeni puniri »nte (>rincipalem malefactorem^
— '' Ordinatum fuil coram rege in pleno par<9l
Mamento apud JScunam per regem et communi*!
tatem re(;n), tpiod supen»edendum est de recep
tat ore alicujus malefactor is judicaodi sive ap«
pellan<h, quousque receplatusjudicelor. Et 4
rec^ptatUH quietus fuerit, receptator quielu^ alt]
sine aliqu& atift assist. Si aut4?m receptatni |
damnatus fuent, receptator hak>et a»;<i!!<)«iiK
And, agrciahle lo the doctrine laid down i|||
these old Statutes, sir Geiirge Mockeozte, ii%|
his Criminab, tit. Art and Part, § 9, gives it j
his opinion, *' That the chtet »ctor must
fiFMi discussed, and either found guilty or aa*l
soilzied^ before such as are accessary can h#1
pursued.'* M'hich he supports not only bjfj
the auihonty ol the old books of our law, «(•!
ready quoted, but also of inaoy of the foreigi|J
doctors.
It ii trae, lie adds, thitt ootwithitaading
87]
t5'GEORG£ II.
Trial tfJamti Sttncart,
tss
^liat U'tfifTG hid doirn, Charles Rotortson
wa« trivMl bHorc the justices asaccessar}' in the
^stin^r <Ni^vn a liiuisr, lliouuh his aons and
M'rrantji who cast ihmn ihe same, escaped, aud
irrre not tricHl. Bat sir Gtnir^e is tar from
iip|mnin)( of that ilecisiun, ami ui^s many
stronc: reasons ajrainst it« and io 8U|iport ot'the
doctrine he had t'orinerly laid duwD.
The fiirt'ijni distort* also have generally
pMio into thi« distinction, with rps|iect to the
ftrdcr ot try inj; the principal an J acct'ssary . I
$hat! ontv'qiHito ihc words of Juhus Clam«,
qimM 00, u. 6 who hya it down as a rule.
** Uiundit pr^Hvelitur contra aliqueoi tanquam
qiioti prar<iiicrit auxdinin delicto, debet primo
in pf\H-t*s«ii con^lare principaloiu ddiquisac."
To .ill these allow me lo add the authority of
the |4«« of Kn);land. which, upoo a point of
this nature, supitosin^ it not Hxed by any
ftatutc or ciTslom of our own, will, no ilonli.
have ^rt*4tcr Weight wiih your lordships than
Iho opinitHis of any private'lawycrs.
Ttiussir ^Uiibc-w Ha1e« in tiis Pleas of the
Crown, ch, ,^7. conceniinij the ordtr of pro-
c^etlic]; )i:aiufti Ace<es«ario«, lays down the to!- '
Towai; pvvp '«>iioi!S. as tixevl rules in the law of:
Fnc^^nd : •• The acivssary m.»y be inflicted |
in uie same in\{:ctaie.it with the pr:uci|>al, and |
Ihai \* I he Ke$i ac«! nu^si usual way. |
*' Tl^e a«ve«s4r\ sMall not be ci^nstrained to ■
aas'^er !•'» his iuJtcimen:. il! the pnncipal Ke
lh<\{. iinW'» l;e wive thai Ktietit ; io which
^15<\ h'is a«\^.':-ta* i'^ c«>o«K-thHi upoo such
t: "Jii » i^nV \\iit il s^<eu^« oerefs^nr ia s»ch
C4*f to n£*, iie jc. ^^went. isM the pnticipjil be
<NV.«:v&r\i a; o i,iA.r:.'\'- fVr tf the princi.'^i tv
aJ^s-wirvS t*>;i:,i:t>!. lUi: cvcv-.ciKo of tbe ic^
•• !/ \ Sr r^'Atixl 1* p--2,.-:rji\ao«! B as ar-
ar* . < ,: } i-^-k V V-'- 1 iv'. r-^'. :,• •:■ ; "'"^
«/'.v ,-- .J .J.': IT* • : .-> r.-J .-.• r < ^
t\.;"<- . *>^- : :*•< »\-\:cs»j-\ ; i • -Sfy
e^ * X ■'*»■" •l'>l?fc; IO>^vl-;S Slf^ •^^
aW«e :* «."• i.*: w i.: .- .v ;o.--.- ': y >. •
V.'r.V:...i« vri- ; .^f i.vt-jaSL-Ti Tn^-^savt
!»•«:-: « t*^^ V i :.* .:-. Tf ••»."* .-.•fr::* -•.* ;y
tW |i^ n. .1.. •••.-! .-I.: .v.i ?if r:.fc:if !.•■ t-o."
^» ;W "I *.:■' CJiT-' i.-c ir /c ..i»f 7r-a«'^a
ff : i«f 4.-** nr-s /I. *irf ."1 .to:r«i ^ w* W'^. ;.' hf
S!:"Sc''ic ■:• ,-.'ir«xt I.. a r W •€*•€ jnfMni#\
YfT li T r.i • .-ijf.. *!« Utf ii» It* S.-vr:iair. Iir
cnitiif.- £ tr* ittmsj It lAMnor. c » lauwb-..
•^« .'f M> Mr iif«<«wiiir T-Ma f^'idrauv. ar>
exculpation, which the aeceBtfy Mh not
know, or cannot prore.
The answers made bj my Lord Advocate to
this ureliminary objection to the order of the
trial, have been three. FirtI, That it is affainat
the interest of society, that crimes shoald
pass unpunished; wfafeh afien must be the
case, if the escape or death of the prindnal
actor shall be understood to be a perpetual bar
to the trial and punishment of those who are
accessary, and no less jniil^v in the comniiaaioB
of the crime. Qdly, That Allan Breck Stewart
hath been called 'upon to stand trial for thii
crime, and hath been denounced a fajntiveaiid
outlaw for not appearing* to abide liis trial,
which is discussing him, as far as the hws of
the land admit. And, S<IW, That both AHaa
Breck and the pannel are cliar^d by the iadid-
ment in the same words, as bem^ ^ilty, actoti^
or art and pan of the same heinous ciiaies ;
w hicb beiUiT in the precise terms of the act IAS,
pari l:2ih uf James 6. nothing can be « 'J
to the relevancy of that part S[ the hbeL
To these 1 w'ill offer but a word or two in
reply. As to the first, founded upon the pob*
lie expediency, and the dan^roos eoDsequcBeri
whtch may nf^ult from this dtstindioD in d»
onfer of trial of principals acd accessaries, it ii
sntn ient for me to sav, ^ incomiBodam non
soil II arcnmentum." iTIie law has been mora
anxious m pa^Tidin? for the dcftoee and safety
of the lives of the subjects, io the trial of crimes^
than for the cvsvktioo and paaisbBefit of the
pi'/ity. Asd hence ii has becoaie aa axiom in
the (aw. bet:er that tec ^Uy pcraos shonM
escape, than that oce inooccBt persvo abeoM
SU3:r.
Tc> the sev-«cJ. «i:b r«sa*d to the fositatioB
of Ai!^3 Brv'.-i. I isswer^ Tbatfcefi ru|:itatioa
dkws DxH i3»i''y a etWTi«-tx« oi tbe ct.iim. wbieh,
S ::.e law c:' Scot** d. cxn ec'i prxirtrf optm
e».ie«,T brv'jLiiiii i^iuss iSe cr^. -a! preseii
■^ c,\ir: i.p%K3 ajs tT! i>. A^ aci ec ?'zjiucioQ is
>. ;-VY i-va- aj!*:'jrr'^' •" •*** c^-i. awiri-
7^ : -e t^-^ei: cf" a.Mei..e^ ajavfC tbe de«
iTk ■.■.*" f.-c V* <va: €-•'.•>". 'T r?c a.->*snsc «•
fii:- :-.x-. v^^^M b-* i-s^sr •• «!:t : ir-d e«tihcr
r-rCk^.S «.-•■» »»• r?.' f l*^r S.'BWIl f^fTaOQ^
e^ ef liie cr-^-*^ i^i-z.-^f i^i i*« bim.
• t»v 7r»?w^2. t ■* * ■ .':?*-y " L n mkm
;.j^ .-^ »<. *- .1- »» ^■•■. .>:■ •!*<•.■ '.:i i<\ypisarji
I .• "f irtc ^:i ? > I'* '.v^f ■ "V^^ :r a9<iQa|
r7 Uft.« ^.Mi o: ' •♦ \-r "-s -s 3es*-eea^ to
•.im».** S4«i« i%i «eKiC? .•*■ Hv^^ f^ 3t wfl
An.-?r 7i %*^tr urmarink » <: r*t v.* wr Ji4a
i-'Scr !!« itiM Tt n,tr: k-^ T>4S it <«^i
sue hr -:W nobv^um of t>.« \tm ?» aHi«!iA tko
«c«kr le |r*PC««f:ir« it
■VktraJiowm
f:
Murder*
4f «1 wmi |iftft« vrilliotit obli(;in^ th? prc^eenior
t» mmimcm^d n*wi» the wlielc |»«rtictitjr acts
ftffViMBlar. ^ rifffnit case, hits brousrht
Hfoadl^i 1, not as
1 w<H^« *«^ Mn »u<: I lo
lition of ilu' M i l>«
r* r ImrM^e iigiiiti^t tUt pan
^^j M whmLi, \ in oontnidictimi to the
^ptml Wfn liiur^i'd ID the nulicJtnietit, hut
mSf m ieepMary ; oni} conierpivntlyi in the
wmmnflmm, aetnr, art awl port in the commis-
'\v the learned sir Matlliew
1 ImifU^r <ji priiicijtah atui
is a|»|tiic&bie to Ibe pre-
treason, aaya be, all are
UB to the course of pro-
A. D. 1752.
lUO
il hmih 'beeii« and inilced oti^fht to be
that tlifvse who did aetunlty eom-
mi^kmtwrj Ibci of rresaon abcrald be first tne<l,
Wbrr ibMvtlMt are piitici|ial9 in tlie second
ikwieCt fceome oiberwise, this incoiirenieoce
Ai^fflt JMInw, itiAl the principala in the fiecoDd
iifnii iB^lit be cOfifit*teif« and yet the yrm-
'*' ' in ttiie ftrit degree mi^'lit be acquitted,
womSd bt aboard/' And it ia hinnbtv
il^ lliaA thit absurdity would be much
m ibe caac of a remote accessary*
Uve dtdt*ioii to the Case of James
^f--^r- -or apply to the point in
t^iime waM, in that case»
to procure a muriiage
1 bromer ; yet, as Jnmes
iH/' and assiatiii^ in the
;ibcliirlioii, coose-
Sy I 'ti the first dep-ree,
ao tsiir lur in the uhi»le crimes
I) a&d , I r, could not be intitled to
tad dit del ciH;e wkch has been offered ihr
aaaaMrf.
wW «« therefore humbly snhuitt to your
kpitliijpt' isoeicidrrDLtion ii^ tliat tliou^h an ac-
aiMry ai r , 'V ijru)il table with
Ibt pn»npii li laid down n
I I he (rials
S and aa
i'y int: atatnte of
: 9l this pannel can-
i^.^ck Stewart, the sole
of the murder, is firat
<i|is yhall 6fHl reafion for
tioti, tlip pnnnel ho|>ea
/ justice, that
f'ntnr, a proof,
■iries that
1 charge
1 aipainat limi ui ihi^ uidictiiiuit.
1W lamia, upm baating the Criminal Let-
^ laail, and the Debate th^reopOD, |iro-
^^ ^ liic Mloatinif
IrrtmuYcmtii t
1W I^rd Ji0liee-G«»tral, and Lord^
nf JiMrtltkiyi bavipf eociaitfarel
tMeod enaitlctcd,
IM, if T
at lat^ptt, tii
■ai irnd U
the onmiaal libel, pursued at the instance of
William Grant of 1*1* ^'""T'-'T^"*' ^^. htsi
jesty *ii advocate, foi > i i»r«st ; i
alfo ut the in»iaucei)i 1 , , dau|fhti
to the hon. Hngrh Mackay of BtjOfhouiie, ew
and relict of tiie deceasetl Colin Campbell
Cilentire, for herself, and on behalf of Elizahe
and Lucy CaniplidU, her infunt eluMren, wiib
fSoacoui*aie of bi^ nm jesty's advocate, fur his ma^
j^ty 's interest, against James Stewart panttc ^
w\ih the loreg^oi I (^debate thereupon, repel thj
Dbj#»ction8 to the libel, and find the libel releran
to infer the pains of law : tltut, time and plac
hbelled, the deceased Colin Campbell of Gla
nure was murdered^ uiul thiit the pannel /atn^
Stewart was g^uilty, acior, or art and purt then
of; but allow the pamiel to prove all tacts ai)d~^
circumstances tliat may teml to exculpate him ;
and remit the pannel, with the libel as found
relevant^ to the knowledge of an assize.
** Anorm L P. !>,*•
Therea(\er the Lords continued the diat
against the aliove J aitiea Stewart pannel, till
to-morrow morning at six o'clock precisely «
and ordained the partieii, witnesses, assi/^ers,
and others ronccined, to attend at tliat time,
and the pannel to be carried back to prison.
Cum* rnNERTs JoETiciAttis, S, D, N. Refia
ten ta a pud bur^um de Inrerarii, vicesimo
secuodo die mensis Septembris, anno Do^
mini miUeHimo septingentesimo <|utitqua-
l^esimo secundo, N. S. per nobilem et pne-
potentem Principeiii Atcliiboldum llact'iu
de Ari^yll, Doroioum Justtciarium Gene^
ralera, et Patricintn Grant de Elchies, ar*
mif^prum, et Dominum Jacobum Fergusuii
de Kilkerran^ f>omiuos Camtoiasioium "^
Justiciarij dicii 8. i>. N, ttegif.
Curia tegittiine affirmata,
Jamct Stewart pannel, indicted and ai^cus^
as in the Ibriner sederunt.
Tlierenftcr the Lords proceeded to malL_
choice of the foUowiti|>' persons, |o pass u[ton
the Asaize of the said James Stewart » |Kinuet:
L Colin Campbell of Canvhin.
d* l>ou^l i>laci)oUi;al of Gdllunah*
3. Alexander Dancanson of Kiles,
4. Duncan Campbell of South- Hall.
5^ Hector Macueil of Anlmeanish.
6. James CamphflU late bailie of Inferar
7. JaniPs Catnphell of Rasheilly*
Ci. Jame« ('ampbell of lludale,
9. Colin Gillespie of B:dimore.
10. Colin C Jim pbtdt of Si'""«i l»
11. Duncan Ciimpbel I rouL
12. Colin Campbell ol '
%^. Niel Campbell ol Duutroon.
li. Arc In bald Campbell ol Date iDCraigoij
15 Niel Camptiell vl Dnnata£Eiii&b<
The above Assize all lawfully avrorn, and i
olrifctitNl to the «OQ<i«ry.
9IJ
SJ GEORGE II.
Trial nfJamei Sleaiart,
[93
Thereafter the Proiecutors, for proving^ the
criminal Libel, called the Witnesses cited by
them ; and the Pannel, for proving^ his De*
lencFf), called the Witnesses cited b^ him ; and
the prosecutors caused to be read, m presence
of the jury, the Writings produced by way of
evidence for them ; and tne pannel's counsel
caused to be read, in presence of the jury, the
Writingfs produced for him; all which Depo-
sitions and Writings are as follows :
Tii£ WHOLE Proof brolght both on the
Part of the Prosecutors, and on
THE Part of the Pannel.
Jatnci Stewart, pannel, does admit the truth
of all the writings contained in thein?entory
of writings tubjoiued to the criminal letters,
and which inventory was delivered to him at
executing the said letters against him, excepting
two of the said writings which he does not ad-
mit, viz. the writing, number 7, intitled, Prin-
cipal holoCTaph letter by Allan Stewart, sou to
the said James Stewart, addressed to Duncan
Stewart of Glenbuckie, dated at Aucliam, the
Ist of April, 1752; and the writing, number
12, intilfed. Draught, letter by the said James
Stewart, and of an instrument of protest at the
tenants instance, relative to the said decreet of
removing and suspension thereof: but the said
• draught" letter and instrument being again
shewn to the pannel in court, the pannel admits
the truth and authenticity of these also ; and
therefore admits the truth of the whole writings,
except the writing liefore-mentioned, number
7 ; out does not admit the writings subjoined
to the said inventory, being two principal de-
clarations by Allan Stewart, son to the said
James Stewart, five principal declarations by
Charles Stewart, also son to the said James
Stewart, three principal declarations by Mar-
caret Stewart, s|»ouse to the said James
Stewart, and two by Elizabeth Stewart, his
daughter.
P. Grant. (Signed) James Stewart.
TbereaHer the Prosecutors for praving the
above criminal Libel, adduced the following
Witnesses :
Mr. Archibald CampbcU of StonefieM, she-
riff^ depute of the shtre of Argyll, aged 56
\rars, married, lieini; solemnly sworn, pui^ged
of malice, i^ariial counsol, examined and in-
terrogate, and being shown the writings fol-
lowing, viz. four principal declarations by
Charles Stewart, sod to the pannel, bearing
to have been emitted in the deponent's pre^
sence, and dated the ^2d, 93d, and 95ih
days of May last, and three dcclaratioDS by
Margaret Stewart, apouse to the pannel, and
two 'dcclaraCiQn ly ENsabeth Slawart, hia
dawlMer, all of IMi bcuinff In
cnitiid I [ iti iiatt " "
tained, and were all subscribed by the respec-
tive declarants in the de|H>iient's presence, ex*
cepting only, that the declarations by the aaid
Margaret Stewart and Elizabeth Stewart wer^
not signed by them, but were signed bv the
deponent for them, because they declared they
could not write. And there being also shewn
to the deponent two declarations by Allan
Stewart, son to the pannel, bearing to have
been emitted in presence of George Douglas,.
sheriff-sulMrtitute of Invei'uess, dated the 3d of
June last, and a declaration bearing to be emit-
ted by the said Charles Stewart, son to the pan*
nel, in presence of the said George Donglaa,
sheriff-substitute, dated the 4th of June last,
depones, That the deponent was present, an4
saw and heard the said declarations by the ^d
Allan and Charles Stewarts, emitted in presence
of, and taken down in writing by the sheriff-
substitute; and they were at the sheriff-
substitute's desire, dictated by the deponent to -
the clerk ; and the deponent saw the said de-
clarations subscribed by the said Alkn and
Charles Stewarts respective, of the several
dates therein contained, voluntarily and freely,
without any compulsion or coaclion. Caaas.
scientUe patei. And this is the truth as be
shall answer to God. (Signed)
P. Grant. Arch. Campbell.
After emitting of the above Deposition by Mr.
Archibald Campbell of Stonefield, to save tbe
time of the Court, in bringing further proof of
the declarations therein mentioned, tbe Pannd
judicially declared, t^iat he admitted tbe tmth
of all the several declarations contained in tbe
said oath, that is, that these declarations were
emitted by tbe respective persons therein men*
tinned, and in presence of toe respective judgcip
and at the respective times therein contained,
voluntaril V and freely ; but does not admit the
truth of the fiicts as declared by the said de-
clarants.
P. Grant. (Signed) Jaxes Stewabt. .
Mungo CampheU, writer in Edinburgh, aged
94 years, unmarried, sworn, purged and cxa-
minetl ut supra^ deiiones That, in the beginning
of May last, the deceased Colin Campbell of
(tlenure applied to the deponent, to go with
him to Locbaber, to assist him in oomiiictin^
the ejecting of some of the tenaota of thn
estate of Stewart of Ardshiel, and of tbe tenants
of Mamore, part of the estate of Locbiel, over
which tbe s^ Colin Campbell was fiMtor, and
which tenants, be appielieoded, would not vo-
luntarily remove, without being legally ejected :
that they set out from Edinbuivh logdheri
upon tbe 7ih of May last, and arrived ail
Glennre upon Saturday the 9ih of thai montb ;
that they aat out tenther for Fort-Williaaa
upon Monday tbe lltb. about ten o'clock !«••
•ben, and icnained at Fort- WilUam tillThm*-
^ the 14th, when they letuiued, in order m*
vanmtlhnMiEtdav ihe«
BMt wm MSI «av mt gjecnao againai aov*
^ mma of Ardihiil : That, when thay
ihnJ^ of DiHarfciHih.ihedafcyt
Si3J
JtiT Mun
A. D. 1752.
[Oi
kfoncat
iCMHe of llie tenantt, end crosied tbe ferry Ke-
twixl four and five io llie aUernoon : thai,
after croi»sing the ferry, Alexandpr Hie wart uf
Bfttt^cbelisli, elHer, mctwttb ihe detuuctfaDil
lliey iravellcil loj^eiher on foot, nboiii llie space
^btif ft iriile, tiU ihey came to the e»kirts of
the ««o4 of Lettermi»re : that, while tkiey
Bmitniijg- toi^etlier od foot, I be de|io*
•t some UtUe di^tauce before tJiem on
and the (iheriff- officer, Doniild Ken-
Miff ^irwm An fovl t>efi>re the depone ill, and
'•s aerrant^ John Mackenzie, was oo
k m liltJe before Gletiure ; and, tbe
It buppenm^ to drop a coat, BaURcbeUsh
Citlliil to bim, and die servant returned, and
thereby fell behind Gleuure and Ballacbelish i
Ibftt Bailacbebsh parted frutn Glenure at tlieir
cnteriog into tbe wood of Lettermore, or tbe
mod oi* Bftllttcbeltsli, a part of tbe wood being'
dllid by ibat name ; und Glenure mounted biii
and came up to the deponent t that tbe
iC ftsked Gleuure, >vh ether Ballachelish
said any tbiuf^ to tiim toucbing removing
leoaatsr And Glenure said, that nothing
beti^irt them on that subject i that com-
a part of the road that was rough and
an as I bey could not ride conveniently
a-breast, ibe deponent and Glenure
, and tbe deponent went before, auit
I have been about twice the leny^tb of the
where tbe Court now sita belore Glenure,
Wircfi the deponent heard a shot behind bim,
ftOd beard Gleuure several times repeat these
'^ ' Oh I 1 tm dead. Depones, that tbe
lot thereupon returned to Gleuure, and
bim repeat the same words; and tbink«,
ii not (lOsitiTe, that he added, Take care of
% for be*s going to shoot you : that the
i CD mediately lighted, and run up tbe
the road, to see who bad shot Glenure,
taw at some distance from bim, a man,
a abart dark-coloured com, and a gun in
iiii band, going away from him } and as the
depoMnt came nearer bim, he mended bis
ptee, and disappeared by hi|;b ground inter-
Jtcted betwixt bim and tne deponent; and be
*Bi at so great a distance, that the denonent
tkiaki he could not have known bim, tnough
Ki bad seen bis face : ibat the de^ionent there-
Qpoa returned to Gleuure ; and either at that
liibf, Of Itetore tlie deponent run up tbe hill as
ifcwe deponed, (the deponent cannot be posi-
trvt wbicli) be took Glenure from oflThis horse.
JSipoDca, that, after taking Glenure from bis
be leaned a little upon the deponent's
and eodedfoured to have opened his
t4> see where tbe bullets, wberevviih be
came out of bis body, but wag not
tUc; but aaw, in hts waistcoat, two boles in
kii brily where the bullets had come out,
IkopoMB, that Glenure intended to have been
tbalftiifht at RiutaUine, where he expected Mr.
Cliii|ibell of Ballieveolao wn^ to meet bim ;
wbcrafore the deponent sent Mackenzie, the
Mivafit aboYe« mentioned, tbrwurd to Kintal*
&•»! la aoquatoi Baltieveotan what had hap-
ly i&d ta bring hiin to bis itsigtiuct : that
Glenure continued in agonies for about half an
hour, or a little more, al\er sending off Mac<
kenzie, and then died; and niLfht coming oi
and no appearance of Mackenzie's returning^
the deponent sent back the .sherift"-o(fifer abov»
riame<l to Bidlacbelish, to desire Mr. Stewurt'a
assistance^ and some of his people : that in a
little more than an hour, BallacheHsh, and
some of bis people,' with tbe sheriiT'officcrf
came to the deponent's assistance, and carried
Gleuure^s corpse that night to Kintallin4% by
sea; and next day carried it to Glenure, whera
some surgeons came, and inspected his body ;
and the deponent saw there the two wounds iji
bis belly made by the balls coming out of bis
body. Depones, that when the deponeut htd
Glenure upon tbe ground, a great deal of blooil
Issued from his body, and his clothes 'were all
sfained with blooil, particularly tbe small of hi«
hack, having bf?en laid on his back upon tha
ground : tbat Mackenzie tbe servant also re-
turned, betbre they carried tbe corpse ofit tha
ground, and some people with bim, particiiw
larly Bstlieveulan^s tons; and, being ^hcwo
coat aud waistcoat, and a shirt, depones, that
these are tlie coat and vest that Gknure bad o«i
when be was murdered ; and believes also, it is
the same shtrt. Depones, that, at the plac«
where Glenure was shot, the wood is pretty
thick on both sides, and, on the side from which
he was shot, very rugged and stony, and
bushes in which Ihe murderer could have easily
bid and concealed himself: that the grouud
there rises up-hill towards the south, though
there are places in it where the murderer might
be pretty nearly upon a level with Glenure;
and there are afso places there so situate, as a
person standing there might see tbe most part
of t!ie road from tbe ft-rry to tbe ivood, and
even a part of the road betwixt Fort William
and the ferry ; and which place is not a mus-
ket shot from the spot where Glenure was
murdered. Depones, thai neither the defunct,
nor the deponent, nor any of their com-
pany, had any sort of anus with them* De-
pones, thai it was betwixt 5 and 6 o'clock in
tbe aftert)oon, at he thinks, when Gleuure was
murdered as aforesaid ; and remembers, when
Glenure was dying, the deponent looked at his
own watch, aud found it was then about 6
o^clock. And depones, that, upon recol lection,
he cannot he positive whether he observed both
the wounds in tbe defunct'r; belly, or only oi
of them. And being interrogate for tbe panueli
depones, that, some days after the murder, th«
deponeut sent a Serjeant and a party of soldiera
to the pannel'g bouse at Aucharn, with orders
to search, and particularly to search for writ->
ingsi that the serjeant reported to the depo^
nent, tbat he bad searched, and delivered to tJti_
deponent otie paper which he found tbere^
being a scroll of a letter by the pan o el, and of
an instrument of protest, being tbe number 1%
of tbe inventory subjoined to the libel, and
which is now iu tbe clerk^s hands; aud being
fihowo to tbe deponent, depones, that it is tba
same writiog that wm deUvartd to biai b) tbt
95] 25 GEORGE IL
•erjeiDt. Depontf, tbtt the teijemnt gave him
no more papers but that one ; and said that he
bad brought away no more. Causa scienlUe
putet. Aud thia is truth, as be shall answer to
God. (Signed)
F'. Grant. Mi/mgo Gampbell.
John Mackenzie, late serrant to Glenure,
QDinarried, af^ed 19 years, witness cited, sworD,
pnrged and examined ut supra, depones, That,
upon the 14th of May last, he came, wilb his
master the deceased Colin Campbell of Gleuure,
from Fort- William, bv the horse-road leading
to the ferry of Ballacheliah, which road cuin-
cidea, a little way next to Fort- William, with
the new road commonly called the King's road:
ihat tbey passed the ferry of Ballacheliah, and
came along the high road, which leads to Kin-
talline through the wood of Lettermore: that,
Gitming up with Alexander Stewart elder of
Ballachelish, who waaonfoot* Glenure alighted
from his horse to walk a little with Ballachelish,
and desired Mun^ Campbell, writer in Ediu-
Imrgh, who was in company with Glenure, as
also the deponent, to step on, which accord-
ingly they did; but coming up to a place
where they were stout by the tide, they were
obliged to alight, and lead their boraea across
a rock ; and, upon that occasion, and by which
means it happened that the deponent dropt a
great coat lielonging to Donald Kennedy*
slierifT-ulficer, who was also along on foot, and
which be had got from him to carry when they
passed the ferry of Ballacheliah ; and Glenure
and Ballachelish coming up, and finding the
great coat lying en the road, one or the other
(if them cried out. To whom this coat belonged ?
which the deponent, being within distance to
hear, said, it belonged to IHmald Kennedy, and
that be had been carrying it, and had dropt it ;
whereu|>on he returntd to fetch the coat, bv
which means Glenure, who had parted with
Ballachelish at the rock that has been just
mentioned, got before the de|ionent, and, when
about a musket- shot before him in the wood of
J^ttermore, he heard a shot which he took to
be from a firebck, which he did not much
mind, nor know from what quarter It bad come ;
but when he came up, he saw Mungo Campbell
wringing his hands, and his master lying on
the ground with a great deal of blood about
him, just breathing, and not able to speak ; and
Donald Kennedy, the sberifT- officer, was at
that tune standing by him ; and, as near as the
deponent could guess, this was about (ire
o'clock in the al>erooon. Depones, That
Mungo Campbell directed the de|K)nent to ride
forward with all speed to Kintalliue, and to see
if John Campbell of Ballicveolan, or bis sons,
were there; and, if they were, to acquaint
them what bad happened, and to come up im-
■oediately. Accoraiugly l^e went, but found
neither Balliereolaii nor his sons there: but
being told by one of the tenants of Acbiu.lar-
roch, that probably James Stewart in Aucham,
wba ia now tJie pannel, might give bim some
•econnt of Ballitffohui } that accwdiiigly he
4
Trial qfJamu Steioart,
[96
went to James Stewart's house in Domr ; and
James seeing hina weeping, asked what the
matter was ? The deponent told him, his master
was killed; whereupon James Stewart asked
bim, by whom aud bow it was done ? To which
be, the deponent, answered. That he' did not
know by whom, and believed it to be by a ahot
from a ^nn or pistol : that I he deponent then
asked him, what was the nearest road to Gleo-
duror, where he expected to find Ballicveolan?
Which accordingly James Stewart having
pointed out to him, he followed ; and meeting
with one Allan Duw, whom he had seen se-
veral timea before, he prevailed with biro to ge
to Glendnror, and acquaint Ballieveolan of
what bad happened, and to desire him to come
up where his master was, and which the said
Allan Dow could do more expeditiously ea
foot, than the deponent could do in that croea-
wi^ ou horseback; and the deponent imme-
diately returned where bia master htv, and.
brought no person along with him: that his
master was then dead, and that the people of
Ballachelish were at this time come no, and
were standing about him. Depones, Inat be
was then sent off a second tiine with a horse
by the road Ballieveolan was expected to come,
in order to hasten bim ; and having accord-
ingly met Ballieveolan, he, at BalTieveolan's
desire, went and acquainted captain CampbeU,
younger, of Barcakline, of what bad happened.
Depones, That when bis roaster and be oame,
as bas been said, from Fort-William, on the
14th of May last, tbey met tlie foresaid John
MaccoU going to Fort-William at the foot of
the three-mira water, which is about three
miles from Fort- William; and that the said
MaccoU came to the ferry of Ballachelisb mueh
about the same time with the deponent, but be-
fore Glenure, who had stayed some time talk-
ing with the tenants of Ballachelish ; and for^
ther adds, that bis master had stayed at Coorj-
chorrachan, which is about five miles from
Fort- William, about an hour and a half, or
two boors. Depones, That when MaccoU de-
sired the ferryman to carry him over, the ferry-
man begged to be excused till Gleoure*s horses
should go over ; and that he waa then em-
ploy^ in gathering wreck : but MaccoU would
not delay ; and acxsordingly was ferryed over,
as bethinks, about half an hour before Gienura,
whose horses were first ferryed over, and tdoof
witli them the sheriff-officer, and sfterwanfi
Glenure and Mungo Campbell. And depones,
l*hat neither Glenure, nor any in bis compao/t
had arms of any sort along with them. And
a coat, waistcoat, and bloody shirt, referred to
in the list of evidence, being shewn to the de-
ponent, depones, that they were the very
clothea and shirt Glenure had on when be was
killed as aforesaid. And further deponeti
That, when he saw the pannel at bin honae in
Aucham as aforesaid, the pannel wrung hb
haiidsi expressed great concern at what had
hap]iened, as what might brinif innocent peo-
ple to trouble ; and prayed that mnooent people
night BoC be brought to iroiiUe. Aad htmg
^f Murderm
idr Hie pafineU rlepooei, Tlitt he-
t mmA ^v « Inch ho :\nA his master ciifne
fhiniF^wt*1V h, tlifre isan*
^ I 1 ; n , larel, both l>v
I fNi fiMM, «rbicli is compiued to lie
\ tittle, and by which he sup-
— _^^^ Cfune. Cftii$n sdenii^ patet.
4Uikif intiU^aa faenhnli answer to God.
(Stgntd)
Ia. Ft»omoys, John MACK£!<2i£t
iKenwtdjf^ sheriff- oiKcer in Interary,
, a^* *'' rr"irs» i«ilne«s dtetl, sivMrn^
an«i ' f/f iuprr»» ilep«nies,Thal|
Ilu- I ^T''*^ 1 ^^t, be was eiii-
I by tf acnes < i in Invrrtiry,
ry a |)«ic<|tiLt '. , dipii al Furt-
WtllimiB; ^iKi when iie ddirifreil the pacquet
li liiiii, tnM hrm, tbai it cnntained a warrant
for^irci in poveRRois of Ibe IudiJs of
; uti the I3ih day of May, he
lo >1- or Fort William^ where
bafeyttdlir 1 Gleniire, and dellrered
|(> litm« who told bim, as James
ll«il heffML* diirte, tvhat tbe pacqiiet
^■■- . ''■■- *■ :---i-nt, was to
l« ipifbyet' ai : tba^
fMiihr • ■ , ,,j -i^*v, . -'--s the
A. D. 1752*
[98
for «3rci
mi wmmtd
il^Wiilimii
Fit W t lit \*< '
re a
litl
iiunii to the vJUili ot Ap|iin
<rh him a ynung gentleman,
^ III be a HrUer «n Edin-
tvaiit Jobn Mackenzie:
u'j,itt .luii tijif bor«ifs " ► i)t lii»t over;
iilfain rrturnf-'d, and f>iou<^ht iivtr
•' |kl»t«ll, and ihedi^ponenl :
u' nn liiDt, as Uah been
! ifadiug to KiotaU
1 1 enure intended lo
fsarivf tlul '■" iiHiit fui I he mad
i^ CUnMitr, M II, and Glftiure'ii
irrvaat, »Kii *oM nol keep up
mibi i 10 rind, unon
^rm^ tofBiillacbe-
Ib4 on fivii^ hr lii^hird trnm lii« horse, and
rtttlf tjn the wny wiili Bnlhichetish^
''if sfsirt orGlenure,
' in company with
ilitf tj> ;v nciU walking on through
of l,cti«Tfn»u**. and after be was
' I ihe wond, he
till*
\^ «rfit *t
l.wWre li
tbal
te; ana
mm h
i«rda
it of II
tot Mil -
livwafila lui'J
tnatdiaiHy upon
Ar ^ liad fviDo u
Am, till Mice fia heard
ttM» hadk 111 MnntTf ^
•tkioi. The •
ne heaf«l the
' '-*^ Mt noice
at that
.;. ^...i iid'tjre the
\r fbremost, as he
71ie de!>orn"nt
d,
'Lie
^ hen be
1(0 taid
killed luy dif^r uncle^
ijy ie«tt one man ; and
de|)Ou«!nl, iaiwd no ^uett)anf>
beingf in confution, and dreading for the same
fate bimseir. Depones, That he saw Glenure
lyin^ upon ihe ground^ with grent plenty of
blooij nbniil bttn, and» as the breast of lils waist-
coat bad hc?en op^^ned litffore tbe defionent
came nri« he saw a hole in bis shirt, through
which ne supposeil a bullet bad come; and
that the dejionent stayed at the place till
Gfenure expired* Deponea, that John Mac*
kenzie, Glenure's serrant, was dispatched by
Mun^ Campbell to tbe house of ivintatline,
where Glenure was to lolg^e that nigrht, and
BaHieveoJnn alou^ with bim^ with orders to
briog Ballioveulan, and some other gentlemea
that were expected to be there ; Muogo Camp-
bell also desired ihe deponent to g^o for other
people, which the deponent at first declined^
g-ivin^ this re<i8on for it, that he would slay
and run the same risk with Muogo Campbell ;
but at last was pi'erailed upt»n to go by Mimgo
Campbell, whom he left alone with I be corpse,
and the deponent brought Alexander Stewart
elder of Batlachelisb^ and several other people
of the town of BaUacbelish. Depones, thai
while Glennre and his company were at the
ferry of Ballachetish, as aforf»aid» be saw •
rnan^ who seemed to lje in a hurry to |fet orer
•he i'crry, who provrd to be John Maccoft,
servant to the pannel ; lo whom Glenure said,
in thedeponcnt'^ hearini^, 8ir, you travel better
than 1 [HK To which he answereij, 1 am in i
haste, and so went over the ferry about an bout
before Gfenure passed it, who had sotne bust*!
ness lo do with tenants there. Depones, thatyl
when the p«?ople were gatbererl about th
corpse, as aforesaid, the said John Macroll wa
(tinontrthem. And MunertiCamplieli then loli
tbe deponent, that when Glenure nnd be wer^l
come three miles from Fort William, ibe#l
met the fsaid John Maccoll going to Fort Wit J
liam, and that he wos back at ihe ferry of BaUl
hchelisb, though on foot, as soon as they. De*l
pouFs, that Glenure was shot aboiit half aii J
iionr after five in the evening", and died, as h^ j
thinks, about six, Mungo Campbell havtntf I
then I rooked at bis watch. De|ioiie9» thnt tbi#]
John ]^[iccoll was none of the people that thii J
deponent had called upon: that the corpa^j
was carried that night lo Kintalline by waierg 1
the place where they lay being but a abort '
<)isiance down through a nigged part of tbtt i
road towards the Loch. And being iolerrogat#^
for the pannel, depones, that there are tw# j
roads leading from Fort Wdham totbe ienf i
of Ballacbehsh, one of them being a horse- ,
road, by which Glenure came, Ihe other a fooU
road, which is the shortest of the two by about \
a mile. Cansa scientia patet. And iUm is tht
truth, as he shall answer to Goit And belai^
further interrogate for ll*e pursuers, depooefl|
that neither Glsnnre, nor any in his com pan j. I
had arms along with thetn of %ny kind. Anil i
being also further inleiipogate for the panneV^
depones, that Jnbn Macooll was at the ferry
beKire Glenure came up. And this Is trtith|
as ho shall an«(wer toGod. (Signeii)
J A. FiK^uftort. BgfiALo &£H>eoT.
25 0EORGE IL
John lUnf Lhingiione^ aliat Maeanure^ in
Ballacheliah, roamed, aged 40, who beio^
vtvorn by Archibald Campbell, Bheriflf-aubsti-
tute of Argj^llahire, aworn interpreter, punned
of ualice and partial counsel, cfepones. That,
upon Thursday the 14th day of Nav last, he
saw Allan! Breclc Stewart in JUllacbelish, in
the ibrenoon, dressed in a dunnisb \ng coat ;
but had no conversation witli him : tliat, upon
the eveninff of the said day, he aaw John
Beg Maccoil, servant to the pannel, travelling
at a good rate frooi the ferry of Ballacheliah,
towards his master's house. The deponent
joined him upon the high road, and asked him
vrhere be had been ? To which John Maoooll
replied, That he had been at Mary burgh for
Charles Stewart, notary public, but did not find
liim at home : that, during this conversation,
the deponent travelled the road along with the
said John Maccoil, and only stopped for a
very short time ; and that the said John Mac-
coil told the deponent, that Glenure that night
was to lie at Kintalline. Depones, tluit, about
an hour and a half, or two hours thereafter, the
deponent went to the wood of Ballachelish,
adjoining to Lettermore, to cut some sticks be
wanted : that, while be was in the wood, he
saw Donald Kennedy, sheriff-officer at Inve-
rary, passing alooff the high nwd below him,
and a little after him Mungo Campbell, and
John Mackenzie, G tenure's servant, and a little
after them Glenure on horseback, and Alexander
Stewart elder of Ballachelish aloiig with bin ;
and, as the deponent observed Glenure and
Ballachelish, they found a big coat upon the
high road, and called to the said John Mac-
kenzie the servant, and the servant came back
for tlie biff coat, and Glenure and Ballacbe- <
lish parted: that the deponent came down to
the road, and entere<l into conversation with
the said John Mackenzie, and, after a few
questions, the said John Mackenzie went on
after his master ; and immediately thereafter
the deponent heard a noise, whicn he ima-
gined to be a shot, but waa not sore. De*
pones, that, some time thereafter, he went
along with Ballachelish to the wood ef Letten>
more, where he found Glenure dead, and was
one of the people that assisted to carry the
corpse to Kintalline. Causa tcientue patet.
And this is the truth as he shall answer to God.
And depones he cannot write.
(Signed)
P. GbAKT. AbCH. CiJCnBLL.
Alexander Campbell^ sargeon in Lorn, aged
50 yean, nnmanied, awom, purged and ex*
nmined ut tnpra^ depones, That Im waa called
to the house of Glenure, upon the 15th day oC
May laat, to ioapect the body of the then de*
ceased Colin Campbell of Glenure, who, the
fleponent was infonnad, had been shot the day
betbre ; and, having aeoordinffly inspected tM
body, he fonnd, that he bad neco ahot by two
bnlleta entering at hia back, one on cneb aide
nf thn bnok-bone ; one of wbieh bad <
MUbMl half w in* btkm dw ufd.
Triai qfJamei Stemari^
[100
the other about two inches from it, towarda tbn
right side. And depones, that they were
tiiortal wounda, of which the deponent believes
Glenure died. Cau$a identic patet. And
ibis is truth as he shall answer to God.
(Signed)
Ja. Ferguson. Alex. Campbell*
AnguM Macdonaldj walk- miller* in Anchos«
rcgan, married, aged 6S, witness cited, sworn,
purged and examined ut tupra^ depones. That,
in April last, Allan Breck Stewart, and John
Stewart in Auchnacoan, came into the depo-
nent's house, and sat down ; and, at the samn
lime, Duncan Campbell (the succeeding wit -
uess) came in, and sat down also ; and which
Allan asked John Stewart, who that wasf
And John answered, That he waa an honest
man in the neighbonrhood, Duncan Campbell,
naming him ; to which Allan answered, That
be did not like any of the sort or name : for
that Glenure had wrote to colonel Crawfnrdi
that he had come from France, and to take
him up as a deserter ; but that be was not in
bis reverence ; for he had general Chnrchill'a
pass : that John Stewart said, that be did not
so much blame Glennre for turning out the
possessorsof Ardshiel; for that he was but do-
ing the king's service ; and that, if he had not
the factory, another would, who would do the
«ame thing; to which Allan answered. That
he rather the meikle devil had it than Glentnc.
And being interrogate for the pannel, deponcf »
that Allan waa tben dressed in a blue afait
coat, a red vest, and feathered hat. Deponci,
that tbe deponent aaw him agam about the 8tb
of May in the aanie dress: that, at that time,
the deponent, and tbe foresaid Donean Camp*
bell and Maloofan Maoooll, were travelling to*
getber, and met Alfain on tbe road : that Alhm
Skve Duncan the eonmion nlntation : and aaid,
at tlie tost time be bad been in Dnnoan'a
hooae, be waa bad company, tlioogh it was
not be that was so mncb tbe bad company, aa
tbe drink. Cease srieaf ttf patei. And tbi^
tbe tratb aa be iball anawer to God.
(Signed)
P. Grant. Angus Macdonald^
Duncan CampheU^ cbange-keepqpf at Annat
igcd thirty-five yeaia, mwried, witneaa dtcd,
sworn, purged and examined ut tupra^ de-
pones. That, in the month of April last, the de*
ponent met with Allan Breck Stewart, with
whom he waa not before acquainted, and John
Stewart in Aucbnaeoan» at tfce boose of the
walk 'miller of Aucbosragan, and went on with
tbem to thf house : that Allan Breck Stewart
avd, that be bated all the name of Campbell ;
and the deponent aaid, he had no reaaon for
doing so; but Alton aaid, be had very gonl
^ 1 do not fbid in Jamieson thia
« walker' (fuller) with which professor LesKt
aiimsts that il is synonymous, {gvnti foiling*
t Piiblichoiiie-keMier. Qo. ii'a atylM^
4
101]
fir Murder.
I Ibr Ht tifeti llMrMft«r they lell Ifatt
r I mi, 9tm drnilciiig « dram tt anothi?
if xxmt In llie dcpoDVDl*! hotiie, where
} wtnt b. Hid drmkioiiie drtiiis« anrf Allao
ml iIm AraMr MttverttHoD ; tod
makiii^ ^« iA«e Rpftwer, Altao
, if th» depooent had aoy respect for
I, W woohJ telt lliem, llidt if they of-
lo titm out the possessors of Ardithiel's
, ke would roakeolack cacksof them be*
into poisessioM ; by which
HI ondersfood shooiiog thern^ it
MS phrase in the country : that
ltd, he did not blame G tenure so
at Ballieftolan for taking these posses -
wharras Gleoure was dofnc- the kiog^
a I ajul Allan Breck replied, That besides
Iktti W liail antitber gronnd of quarrel agrjuosl
Qmoiv, Ihf his writjni^ to colonel Crawfurd,
tltet \km^ AQm, was come home from France ;
ImI libJA lie «vi*« t£»" riinntn^ for him ; for that,
' » at Ed had made op his peace
• L and had gut his pass^
1 in Ins pocket-book : that the de-
I a Rtglit of it : itiat he searched his
isclurl'^lboaic, hut coutd not tind it \ upon which
hi lore » l«Lf oiit of the book, and said, there it
wia, Anddepmes^ That he said twenty times
«fcr fee woahft lie fit -tides h ith G tenure, where-
9i*fm hm. met liioi ; and wanted nothiog^ more
Ibw to oiaet httti at a coureutent place. De-
lli«l« at this* ttinpp Allan Breck was not
, fo b« oAold walk and talk as well as any
but a eouid easily \\e observed, he had
ilriakifi^. Ctitaa tcientiit patet. And
iJi IIm Ituth^ as he shall answer to God«
( Signed)
,GtUMT, Dlncan Campbell,
ten, temtrix to Duncan Camp-
•tceeper at AnAat, unmarried, aged
witnes)» cited^ 8%vorn^ putged and
liv tht> «jworn iiiterpreier above-
6fjv 4, some Urae after the
t7lb dbj Of ^ i ^ before the Brst of May,
iktmm Allan Breck Stewart in company with
i^km Brrck Stewart in Auchnacoan, and
Rsfcut St«w»Tt, In the niiU of Duror, in her
«i0i8r'« I»mf9**; and that she heard Allan
Briefc I ' , tiiit he would not shun
GWn«r» I be met him ^ by which she
UdmiocKi iu*t lie was lo do hurt or harm to
Qfaiir* w lirrev^ h« iaw him. Cuu$a tcientiit
ftitt, Aoii thia ia ibe truth, aa she shall ati*
ivcr in God ; and declares she cannot write.
(Signed)
F. GftAVT Akcu. Cam; dell.
rt Sicft.art, «fon to Robert SlewaH,
' in Cait, Ag-ed about twenty, unmarried^
eked, %wnv^ : r^'d aud exaniineil, u(
^f«, ijr tba ^ lerpreter, de^mnea,
fbl,Mm«1lifi«4i^ Ai^^^l :^t, the depoiietit wan
m emmfmmf wilk Allaa Breck S^tewart, John
^ in A«alwaeota» llnacto CaaipbelK
r m Aonat, ui the s«id liuMcan
'lio«»e: ifnA AUbu Breck coni-
flibid if Coii0 Hoji au£i&isi|( Ok nurci and
A. D. list. llOt
Mr. Camphen of Baltievedan i and said parti*
cutarly or UleDure, that he bad sent uoltce H^
Fort-iVilliam, that he was in the oountry, that
he might be apprehended : hat said, he Mras noi
in his reverence, ns he had the king of Prance'i (
com million In his pocket ; and said, he woolj |
be ereu with him ; and that be would take hii
opportunity to dispatch or murder either !
Glenure or BallieTeoIan, beibre he le^ th4]
country. Depones, that Allan Breck wai ,
much in drink at the time of uttering the abov^ |
expressions; and was then dressed in his lontf
blue coat. Cuusa ncientia patet. And this it
the truth, as he shall answer to God ; and de* \
dares he cannot write* (Signed)
P. Gaamr. Arcb. Campbell. \
Malcolm Bane Matc&lly change- keeper all
Portnacrosh, aged fifty years, married, witoes* j
cited, sworn, purged and examined by the in**
terpreter ut supra ^ depones. That, some tiiii#1
in April last, Allan Breck Stewart and Johaj
Stewart in Auchnacoan came to the denooent^t ,
house after nigiitfall, and sat up all iiight
drinking : that, next morning, John Maccolj^
then servant to the deponent, now in Shunis J
catne into the company, in a shabby cx>ndi« I
lion : that Allan Breck asked who he was ? '
That the said John Stewart answered, That h# J
was an honest poor man, with a numerous
family of smalt children ; and that it would b#
gre&t chanty in any body to assist him: upoii
which Allan Breck desired the said Johl|j
Stewart to give the said John Maecoll a sloni
of meal, and he would pay for it ^ which tk« j
said John Stewart promised to do: ihat thnt]
said Allan then ^re the said John Mi^coll m
dram, and told him, if be would fetch him th« [
red fox^s skin, he would |{ive him what wai
much better ; to which the said John Maccotl j
answered, that he was do sportsman ; and that f
he was much better skilled in ploughing ot i
delving. Depones, that the deponent gars j
no great notice to these expressions at the time |
but, afitr he heard of G tenure's murder, be-
lieved he oieant Glenure, as be wm cornmooly
called Colin Roy, which meant Red Colin, in
the country. Causa icicntia patet. And thit
is the truth, as he ah all answer to Ood ; an^j
declares he cannot write. (Signed)
P. Grant. Abch. Campjullu
ifffHe Mac€oilf spouse to Bfaleolui Bans |
Maccoil, the preceding witness, aged ahoat'i
forty, witness cited, sworn, purged and exa*
mined ui ntpra^ by the mierpreter, depo«ie8» '
conform totlie said'Maicokn Bane Maccoil, iht'
(ireceding wiine^* tn omtubut^ except that tht
said AMan Breck and John Stewart iu Auchna*
coan went to bed for a short rime ; but, whe* 1
Iher they slepi, or not, the de|]onent know^i
not. Cauia KientU ptitet. And this is th#J
truth, as she shall aruw^r to God; and do*^
dares she caniiol writs. (Skgncd)
P. GuAvn . Arcu. Campdell,
Jithn Stewart elder of Fasnaclotch, aged
,«iil^-ait yeirt, latifiW, iwoni| puigsd tA4
103] 25 GEORGE II.
eKlunined ut $upra, depones, That, upon the ^
Bloiiday before the murder of Oleoure was
committed, Allan Breck Stewart was then at
the deponent's bouse, having been three nights
there, accompanied b^ Charles Stewart, sou to
the pannel : that he told Allan Breck, that
Glenure was come from Edinburfjrh with a
warrant to remove the tenants ; to which Allan
Breck said, that, if there was a warrant, there
was DO more to be said ; but that, if he had no
warrant, he would not be allowed to remove
them: that the deponent told Allan Breck,
that a plea with Glenure, coocerninji; the re*
moving of these tenants, would be costly for
James Stewart in Aucharn to support: that
the reason he named James Stewart, waa, that
he was the |)er8on who acted in behalf of the
tenants: that the distance between the depo-
nent's house and the late Glenqre's is about a
mile: that he beard, on Sunday the 10th of
May, that Glenure was going to '^ort- William ;
aud Allan Breck left his house about nine
o'ck>ck Monday morning. Causa iekntia patet.
And this is traih, as he shall answer to God.
Aroyli.. (Signed) Jo. Stewart.
Jamet Stewart younger of Fasnacloich, aged
S9 years, unmarried, sworn, purged and ex-
ammed vt supra, depones, That Allan Breck
Stewart came to Fasnacloich about the Bth of
May, and stayed three days: that he went
away on Monday the nth, about nine in the
morning : that be was going to leave the coun*
try soon, but would see them again at Fasna-
cloich before he went away : that he was tben
dressed in a loug'blue coat, red waistcoat, black
treeches, and a feathered hat: that he saw
Allan Breck the next day, being Tuesday the
ISth, at Ballachelish : that he was then dressed
in a bhu;k short coat with round white buttons,
and a dark great coat over it, with trowsers on,
and a blue bonnet : that the deponent took no-
tice to Allan Breck that he had changed his
dress ; who answered, that he did it because the
day was warm : that the deponent was informed
at Ballachelish, in company with Allan Breck,
that Glenure was gone to Fort- William : that
when he parted with Allan Breck at Glenco's
bouse, Allan Breck told the deponent that he
was going to Calhirt, and would return the
next day, and did not see him since : that on
Sunday the lOlh of May, he heard, being in
company with Allan Breck, that Glenure bad
got an order from Edinburgh to remove the
tenants, and was gone to FVirt-William ; and
that this was at Fasnacloich. Causa seientUt
patet. And this is the truth, as he shall an-
swer to God. (Signed)
Aagyll. Jambs Stewart.
John Stewart younger of Ballachelish, aged
96 years, unmarried, sworn, purged and exa-
mined ut supra, depones, That, upon Tuesday
the I2ih of May last, he saw Allan Breck Ste-
wart at his faiher's house of Baltachelifth, and
heard bim avk questions about Glenure's tra-
velling to. Lochalter : that, on Thursday the
14Ui,lal0at nighti Donald MuiDtyn, • mw
Tfialo/JameM Sttwarf^
tiu
▼ant of the pannel'a, told thpe dtpoBcat of tbo
murder ; and that he was going with a »€•»
sage to Appin from Janaes Stewart his master^
to give him an account of the morder: that he
arrived at App'm's hooso before the said aervaat
came there : that he returned to Appin'a boiaiQ^
instead of going to the panneFs house, when hm
had intended to be : that he (eld Appin of the
murder, at which he expresseil great ourpriat
and concern. Depones, that, in the time ef
the spring circuit in thin place in May last, he
waa summoned to be of the jury ; but, at the
earnest request of the pannel, that he, the di^
pon'ent, should be present with a notary at the
removing of the tenants from the estate of Ard« -
shiel, he was a-going on that errand to the
pannel's house ; but returned to Appin, npoe
hearing of the murder committed that day.
Causa scienti4c patet. And this is truth, as be
shall answer to Gud.
(Signed)
Argyll. John Stewart,
Katharine MaccoU, servant to the pannel»
Qged 16 years and upwards, who bein^ so* ,
lemnly sworn, by the forenamed sworn inter-
preter, purged of malice and partial counsel,
and examined and interrogate, depones, That
she saw Allan Breck Stewart at the pannel's
house, upon Monday the 1 1th day of May Uat»
in the afternoon, dressed in a blue side coat,
red waistcoat, and black breeches ; and does
not remember to have seen him in any other
dress that day. Depones, that the pannd
went, in the atlernoon of that day, to Keels, to
meet Mr. Campbell of Airds, and that it waa
late at night before he came home ; but that
the family had not supped when the pannel
came home; and that tne pannel supi>ed in
company with Allan Breck Stewart, Fasoa*
cloich's daughter, and Archibald Cameron,
nephew to Fasnacloich, and the pannel's fa-
mily. De|K>nes, that she saw the said Alhm
Breck Stewart, on the morning of Tuesday
the 12th of May last, dressed m a donnish-
colouied great coat, in the pannel's house ;
and that she saw him go out at the door
dressed in the said dunnisli- coloured ^reat
coat. Depones, that, upon the evening of Fri-
day the 15th of May last, as the deponent
came in at the door, Margaret Stewart, spouse
to the pannel, being then in the cellar, called
Xn the deponent, who then saw the said
rgaret Stewart put a- side blue coat, a red
waistcoat, with something else that the depo-
nent did not observe, into a sack, and delivered
them to the deponent, desiring her to hide them
some way without. Depones, that the said
Margaret Stewart did not tell the deponeet
to whom the clothes belonged ; but that the
deponent thought the said ooat and waistcoat
were Alhin Breck's. Depones, that she west
awav with the said sack, containing the nid
dothea ; and, aa riie waa going up the brae, ie
order to hide them, was overuken by DugaM
aed John Beg Maecolls, servants to the uawMl,
wkohedaonegnBiaiid awordi} and tkenifl
J^ Murder^
\ Mioerfl mkmi 4m 4«|NMieiit, whut ilie
M^fsi liilm ttdi f The ile|ionent oti«iv7efe<l,
}kmm ABtti Bff<eck'« ctolbcm ; and ahm «he wai
i^ tbrnn ; ami ibat uccordingly the
cooUiniiiif Ibe iihave cl»tli^, wai
lid in llt« nottr nbove the pan n el's house, hy
Ite Mi4 IHmM Maccoll, in (iresence of ihe
L Dipppti, thai upon 8al unlay the
rifijr kai, Jn Uie evening, |U« saitflVlrs,
K to the pannd, ile&ireU the tie-
_ lo carry back whkt she had hid, and
> it at Um hack of ttie hrewhoiti$e ; which
•eoanlingiy did ; and has not !«een
Depones, th^Ll Alexunder fiiine
by Ihe dcpouent about the
\ dlftiitefliOir' l>e)>ones« tliat sotiie time
BOMT httt^ after the above pt^riod^ Solomoo
BaaeMaoDsti, aerrant to the pannel, told iht?
4tfiBmtnX^ llMit ihe said 51ri. Stewart, spouse
la tbe |MiiiiH, d^^stred her to conceal what she
Itibew albcinl the al>oye clothes, in case she
•Im»«I4 W aabad ur examined about them. And,
] ifil<rfQ|ale for the paonel, depones, that
Bntk ntawftrt diil tiot lie in the pannefs
* ^poo Holiday nifjfhl, the lltl) day of
Ma/ lart, b«l Uy in the bam.* aa the depuoent
ttoiDi. Cmg^ iCienU4e pMUt , And this m the
m^^jfh M ^^ *hall answer to God ; aud de-
^^^Bia dbe eaotiol it rite.
■ hmtWL CAvcpaCLL. J a. Ferguson.
I -*"
A. D. 1752.
[loa
h
drtkSimU Otmertm^ son to Allan Dow Ca-
tune chaiJiie -beeper in Mary-
bn' «r9, unmarried, sworn, purged
••« rupra^ hy Mr. Archi)mld
Caoipbeti, ft titute of Ar|>:y II -shire,
Ityaei^ hmu-^ - ate for the paouel, That,
afiaa MaBilay the lUh day of May last, the
from Faanacloich** house to the
*i liO(i9»e after mid day : that, some little
he came tliere, he saw Allan Breck
nrv: that the pannel tvag not at home
afcta Iba dafionenl came ^r^t ttiere^ but eatne
bama bdbrr "7'*^:~'l: that the deponent,
Altai. id the family, gut in one
md miyjr^i : -^^ihpr : that he did not
ifcaiiic AlUa Breck and the pannel speak in
pivrakr tbai mgbt : that the deponent and Allun
tbvwart, the iiiuiDeP-t son, lay in one bed, Allan
and Charle* Ntewart, ton to the pannel,
bed, in the iame barn : that, to the
iVQieiDbfsnce, tliey all went to beil
' time, and ^ot up to^jfether next
thai th« d4»}»oneiil did not uh'serve
fttfeac*' ' '^use next morning when
•**T»iw i^ "f r,:i,oii nmoogthe
' ki I Scotland, In
tii: C4> «■ M u V « "t^^ > ^ ^ > < ^<i p^ of V tsitors
laawouM derange tiie cecooomy
if a viofa fiaiialNMl fy^rif^^ Wbeu they goto
hai, titaj ate oet nadad for want of
M aa abr#t ilafibals spread on
ia a bant, tbrm aitpplemeutary htdn for
af 1km fiieali M (bo tiou«e cauaot coa^
he got itp. Cauia tcienhm paiet. Ami tb
18 truth as he iihail answer to God,
Aiicit, CASipBttx. (Signed)
Argyll, AttcutsALB Camer
John Breck Maccoifthich^ chanjcr^^keepfr
Kintal line, ag-^d about 40, married, witrN
cited, sworn and puri^ed by thr tbrename
aworn inierpretpr, ut tuprn^ iU>iHmvn, "f'hnt, in
the bei^innin^ of Kumuicr la^t, Ik-Iok? WhiiMun
day, Duncan Campbell, sheriff-iiuhsiituie ot
K[|lin, toid the deponent, (hat if hf could, witlil
truth and honettty, makt: any discovery, texid^l
ing to discover the? murderers of Glennre, itivaf]
probable he would mil be turned out of his poa»
session. Depones, that, upcm ihe 14lh day ofl
May last, John Be^' Maccoll, servant lo tlisl
panuel, came to the depouent^s house aloutJ
seven o'clock in the morning, aud told, that th^|
pannel had desired the deponent aud John 31or^|
Maccoll, another stivaut of the panuelu, t^J
ferry the said John Bp{^ Maccoll from his bousftJ
to Lochaber, that lieing- the Bhoi test road froui^
Aucharo to Fort -William ; that the deponent
At the first declined it; but upon John Be^'fl
telHng^. that it was the panncrs desire that n#]
should be ferry ed thci-e, they carried him over J
according-ly. Depones, thai^ in the aiteruufinl
id the s^iut; day, before sun set, the said Johtif
Ueg' MnccoU came back to the depwneut'i^
hou»e, and called lorhiilla mutchkiu* of aqua
vita:, but did not sit down : thnt durin^f the!
drinkini^ of the dram, the deponent askrd the]
sQid John Beg- Maccoll if he had l»cen at Kurt* }
William ? and if he had got Charks Slewar|,.j
notary ? (which be told in the morniii^^ ^aprj
bis errand to Fort-William) John Beg Maceolll
answered, that he had been at Marybur^h, bt||.|
Charles Stewart was not at home. Bepone^J
that, upon Tuesday the 12ih of May lixst,]
Glenure sent notice i» the depoue4it, that h^j
and some other company whs to bt* at his hoii<$oJ
upou Thursday then next, and dessitttl that hei
might be prepared for entertaining them ; noil |
that he accordingly mtidc provision for them. |
Depones, that he (old thai Glrnnre wa-s lo l»# ]
at his house that nii^ht ; and ihut ihe uhal^J
neighbourhood knew of it ; and, upon the pKn-'l
rrel's rii term oratory, depones, that <t lei in re T
frequently went to Lochaljer by Mamuckie,
beinj^ a shorter road to the ferry of Ballachelish
than ihestratfi of Appin ; and he once coming '
from Lochtiher, lai>ded at Kintalline ; and th«^ j
n person paj^sinf^ from Gleoerearan to ttie fcrrjf i
of BaltnrheliKh hy Mamuckie, does not ^ j
throojyh the wood of Lcttermore, nor by Khf {
tallioe. Depones, that he was warned to re* j
mote from his possession, being^ a part of Ard« J
shiel estate^ rI Whitsunday last, nod f^mploye^l
no person to keep fiim in possession. Depone^ J
that, some time after he had got his citation ofl
warninijt the paunel passed hy his house ii< j
liorHeback, and ankcd it he had his copy of citai
tioa in the removing ? The deponent answered
. -■ ■ — c J
^ VA metture cqtiil to la Eoglisb pint,^j
iamieioo.
lorj
26 GEORGE 11.
Trial qf James Steveartf
[108
be had ; the paonel called for a sigbt of it ;
and, upoQ the deponeDt^s pruducing it, the
pannel said he would keep it. And Ming in-
terrogate if Uie pannel informed him that he
was going to Bdinburgh, and was to produce
liis copy of citation there ? depones, Not ; but
only that he was going southward. Caum
Mcientia patei. And this is the truth, as he
ahall answ^ to God ; and declares he cannot
write. (Signed)
P. Grant. Archibald Campbell.
Alexander Stewart of Ballachelish elder,
aged G8 years, widower, sworn, purged and
examined ut tupra, depones, That Alhin Breck
Htewart called at the deponent's house upon
thi? 12th of May last, and that James Stewart
younger of Fasnacloich was then at the depo-
i\ent*s house : that upon the 13th, about seven
or eight in the afVemoon, he came ag^in to the
deponent's house, and lodged with him all
night, Rtayed the next day, l^ing Thursday the
14th, till eleven or twelve, when he went out
with a fishing rod in his hand, and was fishing
ID the burn near the deponent's hou8e,but he did
not see him take any : that be did not take
leave of the deponent ; and did not return ; and
lie knows nothmg of him since: thai the said
Attan Breck Stewart was dressed in a great
coat, and under it a short black coat with white
iMitlons: that, when the said Allan Breck
tStewart was fishing, he saw a great coat king
upon the bank, which he took to be Alhin
Breck Stewart's: tttl,that evening on the
14ih, he was in comoany with Glenare, and
left him very near the wood of Lettermore :
that the morning after the murder was com-
mitted, the depooaot really thought, that AMan
Breck Stewart might be tie actor in this mnr-
te, because he did not retom to this deponent
again.f Causa identic patet. And. this is
tmtb, as he shall answer to God.
AsoTLL. (Signed)
Alex. Stewabt.
Donald Rankine^ herd lo BaUacbeJi&h, un-
married, aged about eighteen, witness cited,
•worn, purged and ejUMoined ut iuprot by the
4- '< This expression appears to me equivocal
and suspicMNis. It most here be observed, that
tha common method of taking down written
•vidence in this country, is not to express the
adoal words of the witness, but for the judge,
«ir eommiisioDer, to clothe the witness's ideas in
the roost saitable language that occurs to him.
Thus the witness's ^ea, when committed to
paper by the Judge, is sometimes very different
from that which he delivered. — The judge who
dicuted to tiie clerk of court Mr. Stewart of
Ballachdish'a evidenoe was tlie duke of Argyle
himself. I apprehend the deponent oieaned
only, that he really thought Allan Breck
might be guilty of this muraer; yet his evi-
dence is so worded as to imply, that the actual
perpetrator was not without oonspira(ori| who
were jouied with him ill ooBlrifipg this
said Archibald Campbell, sworn interpreter,
depones, that on the 14tli day of May last, ha
saw Alhin Breck Stewart at the bouse of Balla-
chelish, his master : and that the said Allan
Breck was dressed in a great duo coat, under
which he had on a black short ooat, with sUver
or white buttons on it : that before mid-day be
went up with a fishing- roil to the water-side,
where ne saw him fiuiing up the water : that
he has not seen him since. Causa sciemti^
patet. And this is truth, as he shall answer to
God ; and declares he cannot write.
(Signed)
P. Grant. Arch . Gaupbclu
Archibald Macinnett ferryman at Ballache-
lish, witness cited, aged 65 years, married,
sworn, purged and examined ut supra^ de«
pones, That he met Allan Breck Stewart near
the ferry of Ballachelish, u^ion the evening of
Wednesday tlie IStli of May last, as tha said
Allan returned from Glenoo. Depones, thaL
after mid-day, upon Thursday the 14th day of
May last, as the deponent was sitting near the
ferry of Balkushelisb, with the son of John
Campbell in Stronmellachan in Glenorchie,
Allan Breck came behind them, and boasted*
and, upon the deponent's looking about, de*
sired hnn to come to him ; whicn the depo-
nent did ; and the said Allan enouired of him,
if Glenure had crossed the ferrv from Locbaber
to Appin ? The deponent told him, he was
sure ne did not : that upon this, Allan Breck
went awsy towards the high road ; had on a
dun-coloured big coat, and had no fishing-
rod ; and the deponent has not seen him since.
I>epones, that he is ferry er upon the Appin '
side, where this conversation happened. Causa
scientia patet. And this is the truth, as be
shall answer to God ; and declares he cannot
write. Andfurtlier depones, that he heard no*
body suspected for the murder of Glenure, bnt
the said Allan Breck. Depones, that Glenure
was expected Imck upon the Wednesday ; and
the deponent was sure he must be back the
Thursday, as it was currently reported in the
country, he was to have a meeting with soma
goitlemen at Kintalliue, Thursday night. And
tnis is also truth, as he &hall answer to God.
(Signed)
P. Grant. Arch. Campbell.
Donald Stewart in Ballachelish, aged about
30, married, solemnly sworn by ArchibakI
Campbell, writer in Inverary, sworn interpreter,
who, being purged of malice and partial coun-
sel, examined and interrogate, depones. That
upon the 15th day of May last, he met tho
pannel in Duror, upon the marches of Auchin-
darroch, opposite to the panners house. Upon
the deponent's regretting tliat such an accident
as Glenure's murder should happen in thn
country, the pannel joined with him, and said,
that he was informod that one Serjeant Mors,
alias John Cameron, had been threaicninf
* <Cougbc4'i€C jamicmD'sDiol.TOcTt
ho8t|tohmiu
/or Murder.
f tn Frmnce, but tlril not inform
y lolil liitii 90 . l>« [mn es, Ih ut »
I More litis not been
ru uli of May
bt- 1 ! , i\ :i i J .icinishtUen
li, DOW to Larichi came to the
I Intin th«t <Hie without wanted
thai this message en me to
)'ii ijwn bouse : ihatf when
• fitd Katharine Macinish fn-
III WS4 Allan Breck that wanted
be Wiui a little oUoire the
I Lrae : that the deponent went up
1 tsiet Ailati Breck, who was then
great ^at, and a dark short coat
ikile metal buttons ; the iIe[»o-
^ Une niiirdtr, and s^aid it could
V, AlUu Ureck, was ahoui it ;
Sreck answered, that he heard
, had no hand in it ; to which
ilied» lie did not believe hitn*
aaid Allan Breck Htewart
f fee was going immediately to
, was rery scarce of money,
: then for KoahNuacoan ; and de-
nl to acquaint the pannci, that
to Koalivnacoiin ; nod desired
il«, to Kt nd him money there ; and
ftttbeti promtaed to acquaint James
like above metaage. Deponcfi, that
" *> mid, he believed he would
[ IImi tntinlerf and upon that ac-
r fr«a a deserter lorrnerly from
Plififtft necessary for him to leave
DejKmca, tliat, before he had
on with Allan Breck he as-
; the eoriiae of <;;lcnure to the
that, fther the conversalioii
I abinil aerjeant More« he de-
mtte irom Allan Breok to
tk>l tne pannel did not say
Mod the money or not :
happened about ten
of Friday the 15th of
[.ttet tli«re wan nobody |>reaept.
I Sunday the 17Ui of May
rBine Stewart* packman
• of Larich in Glenco,
that he had been at
% tMniraati to Appin in Ko-
mlhtr three or fire guineas,
Ipoaitive which, that he had
y to be left with the said John
Allan Breck 't use, if he
lloldtbe demioeni, that be left
Hkfliiid John Breck Maccull^
aid Allan Oreck. And, upon
^ put lor th« panoeL depones,
firt <v v-'ifertngthe above
_ Jlai' ' the pHnnel, the
llrlr^ ^ k himself did not
i it? To which
t* rei(ir_'rikl>rance|
^e Bua-
iier; to
net Eniwvriid, ibal h« bvpttd in
A.n. 1752. IU9
God Allan Breck was not guilty of the murder.
Depones, that, during the above conversation
ivith the pannel, Alexander 8tewart, Duncan
Maccombich, and several other poasesaors of
Auchindarroch, were in the adjoining- field
ddvin^^ but at such a distance that the depo-
nent cannot think they could hear the ib^vt
conversation. And, being shewn the short
black coot, with clear white buttons ou the breast
and pockets, and the blue striped trowsers, now
lying in the clerk^s hands, depones, that tha
said Allan Breck wore such a coat and trowsera
upon Tliursdav the 14lb of May Jast ; and
saw him in it the forenoon of that day at Balta^
chchsb. And further depones, that be, tba
dfpunent, ts manied to a daughter of Stewart
uf Bailachelish, and litays in the house with
him : that her mother was daughter to Htewart
of Annat, in Perthshire. Causa ictentia patet.
And this is the truth ^ as he shall answer ta
God : and depones he cannot write.
(Signed)
P. GiuKT. Aech. Campbell.
John Mticdanald of GlencOj aged 26 years,
unmarried, sworn, purged and examined ut
iuproy depones, That on the 12lh of May last»
Allan Breck Stewart came to Carnock, thv
house of the deponent : that he stayed there
but a very little time, viz. not above a quarter of
an hour : that the dejioneot had no conversa-
tion with bim; and the said Allan Breck
Stewart went away ; That, on Friday the 15lh
of May last, the said Allan Breclc Stewart
canve again to U)e said house at three or four
o'clock in the morning, and knocked at th«
window of the said house when thefamily wer«
all in bed ; that the deponent went to the door
of his house, and there saw Allan Breck
Stewart, who gave him the first notice he
had of Glenure*s being murdered the evening
before in tha wood of Lettermore; and told
him that be was to leave the country ; and
ca.me to take leaveof the deponent and bis step-
mother, who is a sister of Ardshiers : that his
clothes were tlien n dun or brown great jockey-
coat : that the deponent did not ask Allan
Breck ^>tewart any questions about the said
murder: nor did be say any thing upon tha
subject to Allan Breck Hlewart^ as far as tbe
deponent can remember: Allan Breck Stewart
told him be was to go the moor-road leading
to Rannoch : that, upon the Tuesday above*
mentioned, James Stewart of Fasnacloich was
along with the said Allan Breck Stewart ; and
that he was dressed in a black short coat with
white buttons. Causa tcientia paUt* And
this is trutli, as he shall answer to God.
Argyll. (Signed) Jqitn Macdokaui.
hobcl Sicwart, relict of Alejrander Macdo-
nald of Glenco, aged 42 years, sworn, purged
and eXBjnined ut tupra^ depones, that upon
Tu«tday ll»e laih day of May last, Allan Breck
Stewart, described in the libel, came to her
house at Caroock, in the afternoon, accnnpa-
nied by young Fasnacloich, dressed in a black
sborl «<Hlt with white «ltar ^ultoni: tUfttbi
Ill]
i; GEOfiGE II.
TrM ofJamei Sknaitt
[Hi
itayed aboat an boor: and then went away to
the deponent's sister'a house at Callart : that
Allan Ereck Stewart came again to the depo-
nent'tt house on Wednesday the 13th of May
last, in the afternoon, and stayed about a quarter
of an hour ; and then went to BaUacbelish :
that, on Friday the 15th of Mav, the said AHan
Breck Stewart came again to tne said bouse, at
4 o'clock in the morning, and knocked at tbe
window of the house, and all tbe family was in
hed ; upon which the deponent went ont with
her step-son ; and she asked him, what news
up the country ? To which he answered, A
good deal of news, that Glenure was killed the
ereniug before in the wood of Lettermore; that
lie was come to take farewell of the deponent;
for he was to leave the country : that she asked
liim no more questions about the murder: that
she asked him to come into the house ; but he
answered he would uot stay : that to the best of
her remembrance, Allan Bredi Stewart told her,
that Glenure was killed or shot : that, when he
knocked at the window, one of the deponent's
children told her, that he heard Alhin Breck
Stewart's Toice. Causa tcientia patet. And
this is the truth, as she shall answer to God.
(Signed)
Argyll. Isobbl Stewart.
Afary Macdonald^ spOose to Donald Mae-
innes in Leckindum, aged about 40, witneM
cited, solemnly sworn by Archibald Campbell
of Knockboy, sworn interpreter, pnmd of
malice and partial counsel, examined and inter-
rogate, depones, that a little before son-aetting,
on Sunday the 17th of May last, she saw Allan
Breck Stewart sitting in tfale wood of Koolisoa-
coan, less than a mile's distlmce from the
liouses : that, upon her approach, he started to
liis feet : that she gave and received the com-
mon salutation from him ; and then she passed
away on her own business : that he waa dron-
ed in a long dun jockey-coat and bonnet. And
^leponea, ahe was alarmed at meeting a nmn in
ar place so remote. Cauta identut patet.
And this is the truth, as she shall answer to
God ; and declares she cannot write.
(Signed)
P, Gramt. Arch. Campbell.
Duncan Stewart^ trarelling packman in Ar-
larich in Rannock, aged 32 years, married,
sworn, purged and examined ut tupra^ de-
pones, that he met with Allan Breck Stewart
lipon a Monday or Tuesday, about tbe 18th or
S20th of May last, at a place in Rannoch called
Leckinstrensmeir ; and, having asked Allan
whence he had come, and whither he was
iroingP he answered, he had come from Balla-
cheli.sh or Callart, he does not remember
which ; and that he was going to a shealing,
where his uncle Allan Cameron lived ; ami, as
the deponent had at that time heard nothing of
the mnrder of Olt^ure, he said nothing to him
about it : thai, two or three days thereafter, the
deponent's sister lold him, there were two gen-
tmnen wanttmr him out-by : and after he nad
g<st bis breakmsty h« want out, and fint saw
Allan Brack, and afterwards Allao Bfcdt and
Alhm Cameron together at a know $ and that,
how soon the deponent went up to the two,
Allan Cameron went back, and the deponent
proceeded with Allan Breck down the nountiTt
about 6 miles, where be had occasion to on
going about bis own business ; and parted with
him at a place called Inching ; and, after he
parted with the saki Allan Brack, be was ap-
prehended by a gentleman called Alexaoder
Campbell, who supposed the deponent to bo
Alhm Breck Stewart ; and, having asksd the
deponent, if he bad seen Allan Breck ? he then
denied hb having seen him. Ileponaay that
Allan Breck was, at this time, dressed in a hmg
blue coat, and blue bonnet. Ccmia 9cieniim
palet. And this is truth, as be shall answer la
God ; and depones be cannot write.
(Signed) Ja. Ferguson.
AUan Oif Cameron, in Arlaiieh in Rannock,
aged dS, widower, sworn, purged and examined
ut tupra^ depones, tliat on Monday, he thinks
tbe 18th of May last, Allan Breck Stewart, the
deponent's nephew, came to the depone^^
hoose in Rannock, who having told tlie depo-
nent, he had oome from Apptn or Olenoo* the
deponent, who by that time bad heard a mmonr
of Glenun's mnrder, said to the saki Allan,
that ha doubted not be might .be suspected of
it, aa he was a looee Mle man in the coontry;
to which the said Allan answered, that he made
no doobt hinMelf that he wooM be sonceted of
it: and the deponent having pressed him ear-
nestly to make a clean breast, and tell him all
he knew of the metter, he declared with an
oath, he had never seen Glenura, dead or alive ;
and the said Allan having steyed with the depo-
nent till the Wedncadav thereafter, the depo-
nent fiwqnently repeated his instances, to tell
him what he knew of the murder ; at which
Allan Breek became angry ; and the deponent
desisted further inquiry : that the said AHan
Brack left the deponent's boose upon the Wed-
nesday, whom the deponent conveyed Kttie
mora than two gun-shote from his own hoose ;
but Duncan Stewart, chapman, the |
witness, who had come to the deponent'a hen
that morning, went akmg with them ; and he
saw tliem toke a little bve road through cerot
which might have led tnem to the high roadi
bot what road they afterwards took, he does not
know : and depones, that at this time, Allaa
Breek Stewart waa dressed in a big eoet of
a brownish cohmr, and had under it a long Uoe
coat lined with red, red waistcoat, and a bonnet ;
that, upon the S4th of May, as the deponent
thinks, haviiy occasion to go to his master sir
Robert Menmes, when about 14 miles from hie
own house, and at the side of a wood, he heard
a whistle fi«m the wood, and loi>king ahovt,
■aw it to be the said Allan Breck; and tbe
conversation he then had with him, was to the
following purpose: that Alhm Breck having
toM him, his only fear waa to be apprehended^
by the military, which might prove very *Atal
tohuDyafhebadbeoindeaerter} whwh M
\
Jhr Murder,
/, that He wat very sure, Ih^
^iks^il would procure him his
«'r I be murderer; to
(' I at they were althis
tUDc ill Mici. t >B(ce, he h'as very sure,
w«f* be «p^ ;, he wotiUl he hanged.
Co&M irkrn/^or imttt, Aod thU is tnitb^aa
lie tkftll •niwer to God. (Stgucd)
Ja^ foLGVsos. A)XAN Cameron.
Jstttt Afiff«» chdu^^e keeper at Inaerhaildeo,
^fti 31, married^ swam, pur^fed and exa-
' %t i^pra, by *he abore Mr. Archibald
of SiriMcfieh), $v«oru iuterpreter, de-
TUat Allan Breck Stewart came to the
r of the dcpont'tirif bouse at InDerhadden,
Itiwcf p4rt of rCuimocli, about tvtiJight, to-
rdi 1^ 9nti of Alay last, and asked the de-
roi^whowas: theu sUndJnif at his own door,
'ii!(e f H^hich lite deponent an-
ft« 'il then Allan fireck tohl him,
IL I'd by John Stewart in Bohal-
Iji rj lor some supply of provi-
motrt riwl iMt: UejMineol desired him to come
mtu kit bmat^ and that he would give htm part
of fsdi fiif«&a he had ; but thut Allan fireck de-
difttil to c^ome in, hfing in a hurry, and jitood
Iq iiirMf of aofne ftnn t^ion ; vi hcrenpon the de-
po^cot hmugfit him some bread and cheese, and
^ |i(p sTire lirni liip K;*rti«-, conTcyt'd him a?
I h i«l Athn Breck de-
ih' < II ; and that he, the
mii AlUa lirrck, inlend<?d to go Farther down
tSi* 6«M«l/y tiial iii^^ht: that the srid Allan
Brrck WIS <i reused in a great dun coat and
ImooH; antj short hose; wliat clothes be had
•Mkr llift great coat, he did not see ; that be
sv alM»bt(T under his left arm : that he asked
Imi wliciice f tme; but he did not tell
htm* t>e|ior ' Tore Allan Breck came,
m t^rv^ftii), ^ punted in that country,
\imilm was i iti Glenure'K murder ;
•finite h#^ !. Mr* led him at the time,
M^cmti' in I t I wa^ wanting pro-
( .r. ^ ^ itct. And this is
a« be shuil answer to God. And Itirther
Aspoo«« that he has been acquainted with
AtUo Kn>di( these twelve ^ears. And this ii
tkti iroUt. a» Up shall answer to God.
^ * ' t.. (Signed)
Ja?ae& Mas,
Jjkm Cfom-fard, esq. lieutenant-colonel of
piMTat r • ^ ' r : Ti'' - ,.d thirty
Jivs, " viuumed
•^A^r - ..^ ,>i.u,^ ^ .an [faper
Hit ^i K'in^ Number 11 of the
llttiilirrj, in the clerk'M hinds:
Am « w'ss a. : him, before it was sent
•War ni^i ^vhcther the deponent
lt> Kon with the pan-
%^\ r; he answers he
^i& u.. )iny. And being
•iA^4, <» < !oiin Campbell of
ill inUl the (jrpooent, that Allan
b' t waft A deserter, and in this conn-
amenl lutiwert negatiVG. Cama
A. D- 1752.
[114
teientim palet. And this is truth, as Ue shaU
answer to God. (Signed J
Akc^tll. JottN CEAwrciu>.
Alexander Stemart of Inncrnahyle, ajjed 44 I
years, married, sworn, purged and examined ul j
supra^ depones, That the pannel was a (preal |
cnany years aj^^o tenant to his brother Ardahiel
in tiie farm of Glendnmr, and was removed |
also several years ago, the deponent doesnoij
remember how many, by his brother: that he j
again became tenant in tlie same lands In 1749, i
or perhaps 1748, and was again removed by th# j
deceased Glenure, the factor, at Whitsunday 1
1751, and the lands set to Mr. Campbell of I
Ballieveolan. Depones, that, as I he pannel is |
the deponent's near neighbour, the deponent ]
had fre<]«eDt opportunities of conversing witli ]
him touching bis said removal: that the pannel J
did not expect to have been removed, ami '
seemed dissatisfied that he was ; and said, he ^
believed Glenure would not have removed him, ,
if Ballieveolan had not sought these lands from
hiin. Depones, that the paonet further said^
that the tenants generally allowed some gra- i
tuity to Ardshiel*s children ; and that these
lands were the best farms on the estate, and !
mo*>t of the benelits accresced from them ; ami
!hou;^h be himself could be provided of a farm '
elsewhere, yet the children would be depriveii ^
of that benefit. Depones, thai, about the end
of April, or beginning of May last, the depo*
Dent thinks about the beginnmg of Mavt he
casually met on the highway with Allan Breck -
Stewart, and quarrelled with him for not mak*
ing him, the deponent, a visit; and Allan Breck
Slev^art promised lo see the deponent before he.
lef\ the country ; but the deponent has never
seen him since that time. Depones, that, upoa
the Saturday and Sumlay alter Glenure's mur-
der, it was the general opinion of the people in
the country, that he had been murdered bj
Allan Breck Stewart. Depones, that the
place where Glenure was said to be murdered,
and where the deponent observed marks and
BVmptoiiiS of ihe murder, is a very bad road
through a wood, interspersed with rocks and
slooes upoa a hanging brae, from which a per-
son may descry the road on the north side of
the terry of Ballachellsh, and where a person
may easily conceal himself, jty as not to be
seen from the road. Depones, that the de-
ponent is acquainted with the hand- writing of
Allan Slewart, son to ihe pannel, and has Ire-
quently seen liim write. And being ?4hewn a let*
tcr sijjncd Allan Slewnrt,und addressed to Dun-
can Stewart of Glenburkie, dated at Aucharn the
1st of April 1751, being the writing Number 7, in
the inventory of writings subjoined to tlie liliel,
depones, that it is like A I Ion Stewart*s hand-
writing, and the deponent would take it to be
his, but cannot be positive that it is his. De-
pones, that after the atloioder of Stewart of
Ardshiel, the factor gave the j>annel the oppor-
tunity of having the greatest mfluence with the
tenants of jlrd^hii^l nmre than any other per-
son, by allowing the |i«inufl to set the lands,
I
115] 25 GEORGE II.
which heconkinucd dowa to Wliitsunday 17M,
if not at that term also ; but de|ione8, that th«
pannerii connection with the family of AnUhiel
gaFe him also a natural influence over the
tenants, e?en liefbre Glenure's factory. De-
pones, that) before that lime, the tenants, the
deponent belicTes, paid iheir rent to the lady of
Anlshiel, and she ag^ain employed the pannel
to deal with them. And being mterrog^te for
the pannel whether he, the pannel, remo?ed
Toluntarily from Olenduror without any wam-
iag ? depbnes, that he did not hear of
any warning, but that he removed Tolunta-
rily. Depones, that Allan Breck Stewart,
as the deponent has been informed, was a
soldier in the kingN army, and was taken
prisoner by the rebels at the battle of Preston ;
and tliat he was told so by a man who took him
from among the prisoners. And depones, that
' he af\erwanla joined with the rebels, where the
deiMment saw him. Denones, that, afler the
battle of Culloden, he left this country, aud.-aa
lie told the deponent, went o?er to France, and
entered into the French king's serf ice. De-
pones, that the deponent had no occasion of
^ing Allan Breclc Stewart last time he was
in the country,' but at the time before de-
Kned upon, and one time before that; and
th these times he was dressed in a blue
k>ng coat, a red vest, and a feathered bat,
and' black breeches. De|M>nes, that he re-
Ihembers that AUan Breck Stewart came over
to this country a year or two ago, and stayed
9ome weeks among his friends ; but neither at
that time, nor the last time, did he seem, so
far as the deponent observed, to be in any
apprehension of being taken ; only, as he had
been once' in the army, he did not chuse to meet
with any of the king's troops. Depones, that,
at the time the pnnnel removed from Glendu-
ror, he told the deponent, that he had had a
meeting with Ballieveulan ; and that there was
a compromise betwixt them, but does not re-
member the particulars. Causa tcicntia paUt.
And this is truth, as he shall answer to God.
P. Grant. Alex. Stewart.
Donuld Campbell of Airds, aged 47 years,
marrieil, sworn, purged and examined ui tupra^
depones, That the pannel was employcil by
the deceased Glcnure for some time as his sul!-
factor in levying the rents of Ardshiel, and
setting the lands ; and the pannel told the de-
ponent, that whatever was made of these rents
over what was paid into the exchequer, was
accounted for to the children of Ardshiel:
and when he removed from Gleuduror, he
told the deponent that he had reason to believe;
that the said excrescence of the rents of that
farm would still be accounted for to them ; and,
in that case, he would be easy as to his own re-
moval. And depones, that Ardshiel's chil-
dren, at the time of the rebellion, were all
young; his eldest son being now, as the depo-
nent believes, about eighteen. Depones, that,
in spring last, the deponent had a letter from
Trial fifj4i}ne$ Stewartt
[116
colonel Grawfurd, telling him that he heard
Allan Breek Stewart was coine to thecoootry,
ami inlislingmen for the French king's service,
and desired the deponent to inquire if it was ao :
that the de|>onent did inquire, and wrote the
colonel lor answer, that he beard he had been
in the country, but that he was then gone
awav : that this was in the month of April, to
tlie best of the deponent's remembrance; and it
seems about, that time, Allan Breck Stewart had
gone to Rannoch, which gave occasion to the
dei)onent's being informed that he was gone
away; and did not hear of his having re-
turned to the country till after Glenure't
murder; and thinks he wrote also to colond
Crawfurd, according to the information he had
got, that Allan Breck Stewart was in use of
coming every Tear to tlie country, since Ard-
shiel went to France. Depones, that, upon
the afternoon of Monday the 11th of May laat,
the de|H>nent sent to the pannel, desiring him
to come to him to Keills, a farm belonging to
the deponent, at about a mile's distance mm
the pannel's house: that the panael accord-
ingly came there to him that afternoon, m
soon as he expected him : that the deponent's
business with him was for his assistance in
setting that farm : that the farm was accord-
ingly set ; and the pannel himself took part of
it, and conveyed the deponent a part of his
way home ; and then they parted : that, be-
fore parting, he desired the pannel to go neit
mornmg to Appin's house: that the pannel
accordingly did so ; and the deponent had a
letter from him, from that place.* Causa
sclent ia pa let. And this is truth, as he shall
answer to God. (Signed)
V, GuANT. Donald Campbell.
* ** It may be proper to acquaint the reader,
that when Mr. Miller, one of the pannel's
lawyers, desired that the deponing witness (Mr,
Campbdi of Airds) might be interrogated, as
to the pannel's moral character in the country ;
and particularly, whether or nut he was a God-
fearing man, and generally employed in takiaff
care of the aflairs of widows and orphans r
the lord justice- general was pleased to oppose
the interrogatory, saying words to this imrpose.
Would you ])retend. Sir, to prove the moral
character of the pannel, after being guilty of
rebellion ; a crime that coniprehends almost
all other crimes ? Here you will find treasons,
nuinlerH, rapines, oppressions, perjuries, &eo.
To which the !a%vyer answere«l. That he ab-
hurrcfl rebellion as much as any person what-
e>cr; but, with great submission, he was in-
titled to plead for the pannel, that it was
foreign to the present case, since the king hsd
been pL-ased o grant an indemnity, in which
the pannel was comprehended : and therefore
could legally interrogate the witnesses, as to
I the panuePs moral character. This waa never
refused, added he. To give 'an instance. — ^Tbe
famous Collins was a rebel to his God and
Saviour, as his writings testify : yet his most
zealous enemies never refused bis morel cli«-
I
1 17] ^^m- for Murder.
C^mrkt Sifrngri^ writer iud naUr at Btn-
]S^ %i*vjv.^ married, K worn t purged
Ituuniocij I, tlepooes, That Jarncs
lli« iJ4!..-. lotu n letter to the depo-
W^lrn^ him la go with the tenants of
I of Ardshiel, to InthaAtL' to G tenure
m sal tn & bdi of »iiS{>t;nsion : that accordiog^ly
lli« 49pmmi xvent to Aucharu that night ; and
lliaMzlaMif'- '^tiaiils came there; and
hm ^bm »• ^ with the tenants to
GlaiiTii** liiitu*£, and there intimated the siist ;
] A praicti ^a^ alsa taken against the said
K U>a thf$ was on the HI of May.
■y that the panuel told the tenanta al
i^m botiite, that there was a sist come
TviaOf iog ; ttiat he did n<»t desire them
vvitti fh^- -i-i uDlesA they had a mind
lf«i ; w ohoae lo ^o ; but the
cL i : H ifo along. Dispones,
Im t«CMf«d a fiecoud letter from the pan-
I «f daltdie Hth of May, desiring' hiin to
Bl day at the ejection ; hut that he
iIm laiiie, because lie did not care to
Oliimre. , Depones, tliat be saw
iitawari at Aucharn the Ist of
irbeci the deponent left Aucharn
, lUjr* Ik Icll him there r that be heard
"lick ^ V Mic thought it bard that
ilic«i: the tenants upon the
of Ani*uici » w Uen be did not remove
^ Mamaiw* Dcponi'S^ that^ in the he-
Hi* 4»\nl t'lfini^ met 41lan Breck
'cjionent^ that he heard
; nj was endeavouring to
%tkm Inm op ac a d«atfter ; hut that be, Allan
lli«cfc« liAai surrt ndar64 himself in 1746 to sir
M^Kft Jlfo^ira, as a justice of peace. De-
iM*a n.
^ I-
I9 \m cxiretuely ffood« — ^The clerk how*
i to mark any thintp said by the
^ to itie (*oodi}es4 ot the pan-
cter. — Tbfi iloctrine wiiich
i;"»rt, Rprinjfs from the
H^; which regnnfi a
, ,.w.iciplea as a moiuiter in
mry wmocet. But, thank God! the exjjc-
iSaBCtof Late viMiK hiH banished it from hfe:
Hririllilic ' I, without a mixture of
My ami iti i that it has once tnore
miti Ui lirdd in so iMdemn a place,
iMooi^ iiit »ii ii€:cH»iott. Sorely his
net e»uU iiavc recoUet ted iofitauces, per-
mit fO lite ctit?t<* of hi« own act^uaintancej^, if
•HiiMitt^ bi' N, whert^ t^litical prin*
flflfli, «f a • 0 furmeiU^ arc no bar
lilreil a«d r listhbuiion ol
«IM,H wil I, that moral
iloitfliti »* 1 ^.Miit.i — [lemnrkable
*•• Um rvlJ: :Ue poor pannet himself
i^iysHnaiig^ ,,.. ., uj; whoaaid tohm igetit,
^^ It b ftll Oivr miw ; my lawyers n«red give
'IhraHilitci aa furthfr truublo about uie : my
'ikMH if a* ceftmm at li* it were pronrnmred.
^lahtmjs dnniM ihia plaiM', and the iullueuce
*ll«l pfvvaiia m ii » but thia ouuloat all. God
" v^kiflw'" Soppleiiient^^c,
• Ntfia til f* 93 • of ihi» Voiume.
A,D. n5«. [118
ponet, thai in the be^naing of April, the de*
ponenl saw AUao Breck Siewart at Callart:
that be did not apnear to be tkulking: that]
%vbcn be aaw him tirst, he was dressed in t^
French babit: that on the UX day of Mayi^J
when he saw him at Aucbnni, be wah in A I
short black higiiUnd cont wUh white butt ouf
rtnd tri»wsers» and said be bad come frot« 1
lUnooch. Causa $ci€ntta patet. And thiaiij
truth as he shall answer to God,
(Signed)
Argyll, Cuahlcb Stewart.
Duncan AlnccoU in Ardshiel, aged SO yMiV |
and upwards, married, being sworn, purged 1
and examined ut supra, by Mr, Alexonder ^
Catnpbell, minister at Inverary, sworn inter- \
preter, deponi';;, That on his und others bt-in^
waroeil to remove from the lands of Ardsbiel,
as at Whitsunday last, he, for his part, bad n^' ^
intention other th»u to submit to the warning^ '
till a paper was procured from £dinburghy I
which he heard read by Charles Stewart, notar 1
at Aucharn, as on a &Ay be was there, bein^ ^
along wiili hia neighboui-s adrprtited to meet ^
there: that, when the notice was given tor!
this meeting, he was not at bis own houses
but, on his return, bis wife told him such t
message was tent, and that advice was eom« 1
from Edinburgh to direct those who wer« {
warned to remove, to continue in their uostaesv •
sion: that on his coming to Aucbarn, he doe«
not remember whether the ptiper wa^ read iq
bis presence, but is positive he and bis neigh-
boirr» were told by Cbailes Stewart, notar, and
the pannel, that the paper contained advice, ai
above, on which they shouhl go lo ask the
liinds from Gtetiure ; arid to be cautious iu their <
conduct, as ihey were to swear about their
hemg faithful and peaoeaMe tenants. De* *
j»ones, ibnt he gave no allowance or mamtate J
to tiie pannet to make any appUcation at £dm-
burgh against the removing; that, befoi^e be
liestrd Hay ihing of this pafier from Edhiburgh|
he had cn^u;;ed to serve as bouman* lo tite
''^ ^^ A txMirii.in is a kiiid of tenant or servant
(not a herd) in the Highlands ot Scotland, that
\s pIscH i»fK>n a grass room or farm, with a
stocking of c«ttle, he, from the mai^ter; nod
1% accountalde to him for ttte value of the ^nd
stocking, and the pruduc*^ of it, at the yearly
rate of such a number of calveit, kids, latnh:^^
stones of cheese, butter, ^c. He i^ always a,
man of substance, and able to maintnin hit< fii>
imily well J th»l is ihnt *'mphiyetL" Supple*
iiienl to the Trial ol Jam^s Stewart. ,* j
The kindness of Mr. Walter Scott has far>
fiished me v^ith the following noore fuM and ex-
act account of the boumnn or bowman :
" The [Kvverty of the yeominry and peasaoti
of Scotland introduced a imide of ciillivaiiitf
the luod, now fortunutely only known mi our
law books; wIil-u the bndloid foiDishtxl tbt
tenant with the iiapltments ol husbandry, Ibf
cattle for labour, the eeed coro, and itiUer alook
119] 25 GEORGE U.
tenants Glenure was to introduce; but tliat, on
hearinir of the paper from Edinburyfb, he pre-
terret! keeping bj bis nei^bboura, as he con-
sidered the beings continued in possession, did
the law support him in it, more henettcial to
him. Depones, that the procurini;^ the paper
at Edinburgh cost him no money. Cauta
icientia patet. And this is- truth, as he shall
answer to God. And, being interro^te for
the panopl, depones, that' it was in company
vith the rest of his neighbours, he went to
Aucharn, and went along with them likewise
in company from Aucharn to Glenure, along
with the notar; and that he remembers, be-
fore they lefl Aucharn, thepannel, in general,
necessarjr to curry on the farm, the tenant only
contributing his labour ; the prottuce or return
being dirided between them. This species of
location was called by the name of stcil-hawt
for which ▼arious etymologies have been as-
signed. Something of this kind subsisted to a
late date in the Highlands, where a cottager
unable to purchase a cow or horse to stock his
croft, was furnished with one by the landlord
on condition of sharing in profit. These were
called by the old word bowmen ; and such a
person seems to hare been the bowman of Kil-
fisnacoan in the trial of James Stewart." [See
the deposition of Alexander Stewart the pack-
man, in/ra.]
With Mr. Scott agrees Dr. Adam Smith,
who, speaking of the metayers of France, de-
scribes them as Mr. Scott describes the bow-
men, and says, ** that at the time in which he
wrote, a like sort of tenants still subsisted in
some districts of Scotland, where they were
called steel-bow tenants." See Wealth of Na-
tions, Tol. 8, "book 2, c. 3, pp. 90, et seq.
In Jamieson I find not either of the words
boiiman, bowman, or steil-bow, but be inserts
Steelbow goods, which he defines thus: *< Those
goods on a farm which may not be carried off
by a removing tenant as being the property of
the landlord."
And the first authority which he cites is the
following : ** Till towards thu be;;inuing of this
century, landlords, the belter to enable their
tenants to cultivate and sow their farms, fre-
quently deUvered to them at their entry corns,
straw, cattle, or instruments of tillase, which
got the name of steelbow goods, under condi-
tion that the like in quantity and quality should
be redelivered by the tenants at the expiration
of the lease." Erskine-s lustit. book 2, t. 6,
§ 12.
But Mr. Waller Scott farther informs me,
that in the Highlands a common herd, who
takes care for numerous owners of their beasts
feeding on extensive unenclosed pastures, is
denommated the bouman ; and qu. if that be
not in this place the meaning of tlic word. See
the phrMe 'tenre as boanwn to the tcnantt.*
repeated in the foliowiog dcpoolMW of Mtc-
Trial of James Stemart^
[120
told them, they might follow the advice gifen
them, or not, as they should see cause ; and
that, upon their arrival at Glenure, all that be
remembers was, th'at they took protests with
money in the notar's hands, against Oleoare.
And this is also tnith, as he shall answer to
God.
Ja. Fbrouson.
(Signed)
Alex. Campbell.
John Maccombick in Ardshiel, aged 43 yean,
married, sworn, purged and examined ut fuprm^
by the above Mr. Alexander Campbell, swoni
interpreter, depones. That he was warned wiA
the rest of the tenants to remove, at at last
Whitsunday, and meant to submit to h, and
therefore agreed with the tenants to be intro-
duced to serve them as bouman ; bat on his
being called to Aucharn, by a messaffe in
Charles Stewart the notary's name, and bear-
ing the advice from Edinburgh explained
there, and that there were some hopes the
government would allow them to sit still, if
they continued peaceable, he chused to keep
by this chance with his neighbours; apoB
which he went along with them to Glenure,
and asked to be continued ; and got for answer,
that the application was too late, the lands be-
ing set to others ; upon which he joined with
his neighbours in takmg a protest in the handi
of the notary. Depones, that, as to the agree-
ment betwixt him and the incoming tenanti,
when he undertook to lie their bouman, he
heard both Glenure and these tenants say, that
it was by Glenure's advice that this was done.
Depones, that, as Duncan MaccoU and he
agmd at the same time to be bouman lo the
incoming lenante, so he heard Glenore my,
that it was his advice to the person who was to
employ Duncan MaccoU, to take him as hie
bouman. Depones, that, on his being wanh*
ed, he advised with the paonel how to behave ;
that he did not pretend to direct : that an ad-
vice in law should be asked : that he hoped
the king, and those employed by him, woohl
continue the former possessors, they behaving
dutifully ; and that, on his being advised by
the pannel to have patience, he resolved to
wait the issue : that likewise the pannel ad-
vised him, if better could not be made of it, lo
endeavour to gel a sub- set from the incominf
tenant; and tliat thepannel advised him, and
others concerned, to qualify to the government.
Depones, that he told the pannel, that if the
law countenanced the continuing them in their
possession, he would rather chuse it. Depones,
that, on the day he and his neighbours went to
Glenure, the pannel left them to the freedom
of their own choice, whether to follow the
purpose of the advice from Edinburgh, or not ;
only it was his opinion, that they had a chance
of being continued in their possessions, they
behaving themselves in all respects dutifully,
and go and ask the lantlsof Gleuure. Defioncs,
that he does not remember that the advie«
from Edinhurvh cost him any money, or that
any was asked of him ; bat that some aocounttf
wen at that tint bctwix bin and the puBd.
J6f Murder^
ODM, Ih&t be tonttniied wtlh the rest of
tenaols about the jiannel, till ihey were
by bim to lea^e him^ as be could
of bimselK, aad ii as to gt» home :
he does Dot remember to hare lieani
i*i name meutioned alt the vvbile ; am J
tliis happened on occasian of Gleuure
mnd tk9 pani]er*( meeting at Riotalline : lliat
lie if ant posiiif e as to the time, but ihinka it
wif Ibe last night of the old 5 ear. Depones^
tlNl be heard Glen 11 re went next day to the
|iaoei*a lioiu»e,aod ilined there. Causn sci-
nti^poiti. And Ibis isi truth as be shall an-
•wer Co God. (Signed)
B.GviATrt, AtEx. Campbell,
JoIa Maccorquodale^ late in Letter mo re,
BO* in BaHachedsbf a^efl 20 and upwanisi
mimed, sworn, |>iirged and examined ni »upru,
ly the siaid Mr. Alexaader Cam|ibd), s^'orn
iul«rpreter, depones. Thai the Last night of De-
ceiaber b^t, he was |iiftient ni Kintalliiie, a^
GUaure and the panuel, wiih some 01 her com*
Dtnv, met ; when, Hfter drinking a while, from
load fiords it was apprc^li ended a r|uurreL 11 ould
«nme ; to prerenl which, the depoDifot with
Mme oiber«, carried out the |iant)el, who seem*
cdiiowilhug to part wiih Glenure, n» he ex-
pecM Glenure Houhl go that niglit to his
Imtff: that the deponent beard ihai Gleaiire,
iWigli he dechned in ^o with the {launellhat
mgM, vet he proposed to breakfast with hini
%txi morning : I hat tlie depotit* nl was in com-
pAoy with the panivel, and loltowed him at
iime diitance from the bougie of Kintalline ;
•0(1 that slW the white he w^ in the panDefs
cuiapaay, he bi^ard nothing of Glenure; only
Ibe |)tQnel was ihsohJiged at being separated
(t<m bim, and said, tjiat if they about him
hid Iff pi off, Glenure and be would be good
Tricridi Uffure they would [*art* Depones,
dm, when he was warned, and conse^^uentiy
lib to want lands, he was talking of bis situa-
ti<uito the pannel, being poor, and, in his own
tppfeheoMOii, unable tu hear the expence of a
ItWfuit, did not propose to follow the matter
iQ Ibtl way : that being asked a sight of the
wimingt he gave it to ihe pannel, but did not
imn any advice in law should be asked ntiout
•li hivintf some dependence on his innocence,
wd t»'4 l»€Jog concerned in any of the ti'i>ubles
•■tbal country. And being iiilerro^fate tor the
fittutl, wli ether the pannel had ail vised him,
^kdepooeoi, to eiii^aife as bouman in Leiler-
^^^tol, if lie Iter could not be provided for him,
^^niei negative. Cuusa scientta: patet. And
vk truth as be shall answer to Gud.
(Signed)
r.GjuLjsr. Alex. Campbell.
Evun Mucin tyre tn Ducbelly, late herd in
Olenduror, aged QO years and upwards, itn-
AvntKlt awnrn, purged and examined ut ii/pro,
•y Wr. Archiliald Campbell of Stonetield,
99t)m interpreter, deponeK^ That he engaged to
fct herd 10 Mr, Campbell of Balheveolan, in
Ike faroi of Gleuduror, for the year 1751 ; and
Hut tbe day after be entered into bii service
A. D. 1152.
there, the paotiel challenged bim for accepting
thereof, ami told htm» that he would be fit-
aides* with him, sooner or later, for douig it ;
and that if he did not meet with resentment
himself in his life-time^ others^ such aa his
friends^ niight meet with it after his death.
Depones, he nefer was in the pannel 'S service.
CaUBo scieniitt patet. And this is truth, as fa«
shall answer to God; and depones he eaonot
write. (Signed)
AftOfXL. Aacu. Campoell,
Alexander Camphtll in Tynaluih, aged fifty
years, married, sworn, purged aod examined
ut snprdf depones, That, iu the end of April
last, the pannel called at the deponent^s bouse
in the luorniug, to have bis horse corned ; and
baring called for, and got a dram, which wa*
afterwards set down upon the table, one Mac-
laren, a merchant in Stirling, who l»ad lodged
with the deponent the night before, l»eiog pre-
sent, asked the pannel, if he would not help
the deponent to a dram? And the pannel au-
swered, be did not know any thing thai be
would help the deponent or any of his nameto,
if it wa^ not tu the gibbet. The deponent an«
awpred, that that was not a comfbrtabit expres-
fiion to liim. that it seems if any of them were
al I he gibbet, the pannel would draw dm«it
their feet ; und the pannel replied, that of some
of thf-m he wonhl, and some of them he would
nut ; tbat then (he deponent said, that Glenure,
as he supposed, waK the man of the nnme with
whom the pannel had the greatest quarrel, and
the deponent did not knov% any good cau^e the
pannel bad tof it: upon which the pan net an-
swered, That if Glenure tiad used the d^po^
nent as ill as he had used him, ibe ^auoel, by
turniniiT li\m out of his nossessiou, he would
bare no lens quarrel with him than he bad :
and the deponent replieil, That that was 00
just cause of quarrel ; for that li (he pauuel bad
a tack of bis farm, Glenure could not turn bim
out ; aud the deputient*s wife was also present
at this conversation. And being mterrogate
for the pannel, whether the de|iouent then
thought him serious, and in earnest, or that it
\» as only a Joke ? depones, thai, at that tinier
he thought it proceeded from malice. And
being further interrogate for the pannel, de-
poneij, he was at that time ]>erfeclly sober.
Depones, that all they drank was a gill of
aquavira;, of which the deponent got a p4irl.
Causa icientiic palet. And this h trulh, as be
shall answer to God. (Signed)
P, Grant. Allx. Campbell*
Ewan Murray^ vintner, at wei^t end of Loch*
earn, aged thirty-four years, married, sworn,
purgpil and examined ut supra^ depones, That,
in April la«it, the pannel and Colin Maclaren,
merchant in Stirling, came to the deponent*»
Imtise, and the [lannel tidd ttie deponent, that
Glenure had warneil away several families ia
* I believe the otdiuary expression 11 to be
upiidet wUh. Both seem to correspond wttb
the Engtisb rulgar phrase of 6ctii^ evtn with^
189] 25 GEORGE 11.
Ardflliiers estate to remo? e ; and that be was
inruriuedy that none of Uie factors on the for^
feited estates had power to remove the teoants ;
and that he was going to Edinburgh to take
adfice of lawyers about it; and, if he had not
that power, that the paond would apply for
suspension in his own name, and in name of the
rest of the tenants; and, the oonfersation
turning upon an officer of the army, that was
branded with cowardice, and had been broke on
that account, the pannel said, that he had rea-
son to say that Glenure was as great a coward
as that officer; for that be, the pannel, had
challenged him to fight him, which Glenure
declined; and desired the deponent to tell
Glenure, that he had told him so ; but the de-
ponent answered, That he would not carry any
aucli message from one gentleman to another ;
and, from theoonrersation, the deponent under-
stood, that the arms with wbicii the pannel
had challenged Glenure to fight, was with
pistols. And being interrogate Tor tbe pannel,
depones, that he thought the pannel was a
little concerned with drink. Cauta tcientia
p€tet. And this is truth, as he shall answer to
God. (Signed)
P. Grant. Ewan Murray.
GoHn Maclaren^ merchant in Stirling, aged
twenty-two years, unmarried, sworn, purged
and examined ut iupra^ depones. That, in the
month of April last, the deponent happened to
lodge in the house of Alexander Campbell in
Tynaluib a niffht, and in the morning about
nine o'clock the pannel alighted there; and
hating breakfasted and got a dram, the depo-
nent understanding that the pannel was going
the sanoe road wiUi him towards Stirling, de-
aired the pajinel to gire the landlord a draoo,
that they might go ou their journey ; that the
pannel answered. That he did not think he
■boold help the landlord, or any of his name,
to a dram, or any thing else, if it was not to
the gibbet : that be had mentioned to the land-
lord, that Glenure had warned him to remove
from bis possession in Ardshiel ; therefore the
landkMd answered, that it seemed, if they were
on the pbbet, the pannel would draw down
their ftitt ; and he supposed it was on Glenure's
account; to which the pannel answereil, he
ceuM not sav but it was ; upon which the pan-
nel and landlord entered into an altercation to-
gether touching the justice of that remo? ine ;
and, as tbe deponent had no concern in the
matter, be took little notice to what passed.
Depones, that, upon the landlord's using the
above expression, that, if they were on the
S'bbet, the pannel would draw down their feet,
e nannel's answer was in these words. That
he did not chose to be an executioner,, but he
could draw down some of them. Depones,
that from Tynalnib the pamiel and deponent
proceeded on their journey , and about eleven
o'elook, or osid-day, came to tbe iMNise of
Etrao Mumy, the pracediiig witnesa: that
tlMre tbe panDel again oompUmed of Glannre'e
raneffaisrhini tdd Uaa, il wm; Mt Cwp-
Trial qfJamet Stevoartf
[IS*
bell tliat was to succeed in his room*: that be
did not know . any reason lor G tenure's using
him so, for that they were cousins : and, upoq
the deponent's saying, that possibly it wasJKMie
of Glenure's fault, and that he cuukl not bdf
it, tlie pannel said, he did not know any busi-
ness that either the exchequer or the TactM
had to turn out tenants, while they paiik tbttir
rent ; and said, that he waa going to Efdinborgb
to get a suspension of the decreet of remof ins^
Depones, that, having left Ewan Murrajri
bouse together, and tbe said Ev^an in coanpany
with them, the conversatiou turned upon af
officer in tbe army, who had been broke ftr
cowardice ; and the de|>onent said, be was sur-
prised with it ; for that that officer, as the de*
ponent besrd, had not declined to accept of a
challenge to fight from Glenure ; that tbtre-
upon the pannel said, that be esteemed Ibit
officer a better man than Glenure : and Ewaa
Murray having contradicted bis being so good
a man as Glenure, the pannel said, thai he
knew the contrary ; for that he himself had
S'ven Glenure s challenge to fight him, which
lenure declined ; and ilesireil Ewan Mumy
to tell Glenure, that he would fi<sbt him whcfl
he wouM ; but Ewan Murray declined le
carry such a messsge. Depones, that, afWr
parting with Ewan Murray, in tbecooraeef
their journey the deponent found that the re-
moving was much at the pannel 's heart ; and
the deponent endeavoured all he could to divert
the conversation to another subject: that the
pannel told him, that, if he failed in his aw-
Emsion at Edinburgh, he would carry it to the
ritish parTiament; and, if he foiled there;^
told him, after a IttUe pause, and with an eoH
phasis, that he behoved to take the only other
remedy that remained. And being interrogate
for tbe pannel, depones, that, dunng the con-
versation in CampbeH's house, above deponed
upon, the deponent at first thought that tbe
pannel had been in joke ; but afterwards it was
like to become very serious ; for the landlord
and he came to pretty high words together:
and being further interrogate for the pannel,
depones, that he did not think the pannd
dniok, either in Campbeirs house, or in Ewan
Murray's house ; but, after leaving Murray's
house, they drank two or three drams at a
dram- house; and after that the deponent
thought him much concerned with liquor; and
it was after taking these drams that the conversa-
tion between Murray and the pannel, with re-
spect to challenging Glenure, happened. And
depones, that they had rode several miles to^pe-
ther, befbre the conversation about ihe British
parliament ; and the deponent thouc^ht liiiii even
tlien still concerned with drink. Cauta scieit-
tia patet. And ibis is truth, as lie shall an-
swer to GihI. (Signed)
P. GsANT. Colin >1aclak£n.
John More MaecoU^ late servant to the paar.
nd, aipsd thirty-seven, married, witness citedp
sokmoly sworn, purged and examined byUin
•bof e-oanidi tlepoBci, Tha^
fd/r Murder*
presefit at a oonversation that liajipened
tUe paniiel, Jobo Beg and Dui^td Mac-
serrants to the pntinel, in lli€ pau-
wiioiiae ftt Aucham^ ij«fm-e dfty-lig:hl
tQoriiitig'4 abotit Yule last^ as the deiH>-
l remefiil>er«: that llie deponent was
i^ employed tti rlifitilling' the second draught
' ^ brcwmi*' of a4)UafitGc; and the pantiel
deponeot to ^^Itq lilm and the peo-
a dram, ivhich the tte)iotieDt dtd :
pauiit'l said, Glenure wmild not tnke
from the tenants of* Aucharn, part of
isliiel estate, because they had flfi?eii the
•orne bear, which Glenure alledi^ed they
to imve paid him ' that the paniiel com-
it was hard to refute the rent in money
the tenants in a scaree year ; and oh-
•erTfil, that it would be of no great cotiseqaenfe
to faim^ the panne], though be should pay hack
tbe bear, in comparison to what it would be !*»
(helenanta for »suhse<pient years, in ca*ie ihey
Wfr« nb)i}^^ to pay their larm bear ami meat ;
Ia4 said, the tenants or comnioners were hkely
Ivkferv Mi off; for if Glenure went on m the
Hjbctneu did, rt was likely he woufd be laird
of Appin in a very short tirae ; and that he
knew once a set of commoners in Appin, who
taotd not attow Glenure to go on at tucb a
rate: to which the deponent and the rest an-
iwered, that they knew no comtu^iti'TS in the
OflfQDtry that could strive or contend wilh Gle^
Mre in tbat manner. Depones, that he had
w coh versa tion wiib the said John or Duffald
Miccolh that day, nor any time therearier,
tboot the inn port of the above commoninif.
l>f|Mmcs, that in seeil-time last, when tbty
went harrowing' the tath- field in A uch am, beings
tW Tery d^y that James J^ewart went for
£4iabaiYh, Allan Breck Stewart cikttie to the
depftaept, andtlie latd Dug^ald Maccoll, a^ they
iHfe yoking^ the horses; and the deponent,
biriog asked him some questions about France,
ttid, he did not tee any of the people that went
flTcr I here, come back in so trofid a way as they
went Of er: to which Allan Breck replied^ that
dny came back belter thau iliey went ; and
tliU tbey, meaning^ the people of Appin, iiMifht
Worich belter, if they wer^ \vnrtb themselves:
Ipiaihe defionent^s answering', that he did not
•« bow that coo Id happen, Allan Breck an-
"•tfwl, if they, the commoners, were worth
^wiaekes, lliey could keep out Glenure, and
^Iftlpf htrr^ Prom oppressinjj llicm ; iiW which
^^^^^, Itl not be bauish[*il from their
^^^p' 'Hm«; and, upon the deponent's
^^»»inuj^, lie did not «ipe how any l>o*ly could
i prrtfud Kt strive or srtrij;fule with Glenure in
Lj|lt^v %,. had the tuwa uf ihr^ Iwint; »nd
HBn'- li, and nobody to supp^^^t or lake
■^fe Wy ii!c nftnd, after their so doinj^ ; Allan
ftiH, he had it in his power to save or protect
wijp body that would put Gletiure from tramp-
fioff upon the country in the manner he then
wiT And, being interrogate for the pannel,
•bitdre«tthe ^aid Allan Brerk used to wear,
wImsi be taw bim at Ancharn ? depones, that
hi!wi}F8 9BW bitn wear a blue side coat, red
A-D. ITS?.
[las
waistcoat^ and black breeches, with ai hat and
feather, except twice that he saw him in a
black short coat, wilh white metal buttoof.
The first lime he saw him wilh the aaid sboit
coat, was, when the pannel was at EdinburgU ;
and the said Allan Breck told, he was 43:uing to
Rannocli, and aciually went away, and atayed
several tlays ; and the other was upon Monday
the 11th day of May last, when he saw the
said Allan Breck come to Aucharn dreased in his
long clothes^ and came directly where the pan-
nel, Allan his son, John Beg iVlaccoll, and the
deponent, 1% ere covering potatoes: that, when
Allan C4ime up, they were reiting- Ihemseltesj
and silttti|i^ by one another: that Allan Breck
sat with tlieiu; and all the conversation that
the deponent houcimI wae, some questions aU>iit
the welfare of the people of Glencrearan : and
thai he did not observe the pannel have any
private couversrttion with the said Allan Breck ;
Ibr that, a very Uule time after A lUo Breek't
arrival, the part opI had a message to meet Mr,
Campbiftl of AirdK at Keel ; and that thii
liappiiDed after mid-duy : that the pannel im.
mediately, upon reiTeirim? the above niei$sag<^y
went away in order to meet Airds : and that no-
body went aloni^ wilh the pannel, Atlan Breck
hav'irij^ stayed with lliem : ihal a little ttiereafler,
the dc'poneiit, Allan Stewart ihe panuersson,«]tl
John Be^ Maccoll, went to cover potatoes at s
Ifreater distance from the pannel's house ; that
Allan Breck stayed behind ; and, some time
thereafter, Allan Breck came where they were
workio{T, dressed io a black short coat wilh
white tnetal buttons and black breeches, and
wrought with them in covering' potatoes. De-
ponesi, that the deponent came very early upon
Tuesday morniui^ to the panners sooi and
found the serf ants petting up : that the depo-
ueut went to AuchaVii, at about n quarler of a
mile*8 distance, for a slaug-hter-spade ; and, ai
be waK returning from theoce, be met tlie pan*
nel goins^ for Appin'i? house; and when he
came to the paouel^s honf«e, he saw Allan Breck
silling in a rooui^ dressetl in the black short
coat, combing' his hair. liepones, be never
saw the said Allan Breck at work any of the
times he saw him at Aucharn, e^fcept covering
I lie potatoes upon the Monday eveoing %M
aforesaid. Cttuiti uimtia patet, Aud this it
Ihe Imlli, as he shall answer to God.
(Signed)
Ja, Ferouson, ARcn* Campbell
Dugatd Macc&ll, servant lo the pannel, un*
marrieiK aged 24 years, witnejts oted, swoiiif
purged and examined u^ mpro, by llie fore-
named sHorn interpreter, defiones, That in the
Ititter end of winler Inst, about dny-break, the
deponent was alonjjsl with the pannel, in hii
brew- house at Auchurn^ in company with John
More Mact'oll, and J<din Bt'g Maccoll, bolk
aerfanis lo the pirn nel : ihut, after takinpf »
dram of whisky, the convf^n^aliou tell ijpoii
ihe tenants itf Aucharn » a part of the fbrfeiled
estate of Ardshiel ; and that it was theti meu-
tioiieif, that tliey were in use to f«y #ofiie be^r
187]
25 GEORGE II.
Triid of James. Steioartf
[ISB
mod meal •• partof their rent : that the tenants
of the said town of Aucharn had paid the bear
to tfaepannel thev were in use to pay, and made
offer of money for that and the rest of the rent
to Glenure, the factor ; and that Gteniire re-
fused to take the money, insisting* to have the
victual paid in kind as formerly : upon which
thepannel said, that Glenure was like to hurt
liim, the said James Stewart, as much as was
in his power ; for, as the tenants had paid him
the bear in use to be paid out of that farm, and
turned it to his own use, he would be obligred
to answer to Glenure for that article of the rent ;
but added, that that was not the worst of it, and
that, if he, Glenure, went on in the same way,
it was likely he would in five years be laird of
Appin ; and, upon the deponent and the said
John More and John Beg- MaccolPs saying,
that) that was likely to hapiien, the said
James Stewart, the pannel, answered, that
that was the fault of the commouers or fol-
lowers ; for however he, or people in circum-
stances like biro, would shift for themselves,
thev, the commoners would be very badly off:
andf added, that he knew commoners once in
Appin, who would not alk>w Glenure to go on
at such a rate ; to which the deponent and the
others present answered, that they believed that
there might be commoners once in Appin who
would do so. Depones, that he does not re-
member that he and John Beff Maccoll had,
at any time that day, or thercMier, any com-
muning about the sense or meanings of this
conversation that happened in the brew-house.
Depones, That, upon the last night of December
last, Glenure and John Campbell of Ballie-
veolan were in company with the pannel, John
Stewart younger of Ballachelish, and James
IStewart in Ardnamurchan, uncle to the pannel,
in the house of John Breck Maccombie,
chan|;e-keeper at Kintallinc ; and, after night-
fall, by the desire of his mistress, the deponent
went there to attend his master home: that,
after he came there, Glenure, the pannel, and
bis company, drank till it was late at night, and
the deponent heard them speaking together ;
but as It was in English, he did not understand
what they said : that at last they began to
speak very k>ud, and got up upon their feet:
that the deponent, and several other com-
nouers, who happened to be at the house at
the time, apprehending they were going' to
jf|uarrel, went into the room in order to prevent
it : that tbey still spoke loud, iiiul in Euglish ;
and the deponent, with the assistance of John
Maccombie, alas John the son of Duncan and
grandson of Malcolm, and another John Mac-
combie, alias the son of Duncan and (grandson
of Duncan, both then tenants in Ardshiel, and
John Roy Maccorquodale, then in Ijcttermore,
BOW in Ballachelisn, carried the pannel, and
the said James Stewart his uncle, out of the
room : that tbey bsisted for being hack to the
company ; hut that yonng Ballachelish came
to them, and told them that they must not go
back, and that they ought to be good friends :
lipon whiob the pannel taidi be would not itir
frooi the place, till he was told by Glenure if
he would go to his house next day ; that Bal-
lachelish said he would go and get notice, and
accortlingly went into the room, and returned
back in a little time, and told tlie pannel that
Glenure promised to see him at his bouee nest
day : that the pannel asked if Glenure had pro*
mised so upon his honour ; and upon Ballacbe*
lish answering he did, the deponent and
the said John Roy Maccorquodale carried the
pannel over a burn adjoining to the aaid home
of Kintalline in the road to Aucbam ; upoa
which' the pannel told them, they were belter
at that than in doing what they ought to do, and
that it was to side with Glenure, not with hia»
that tbey were there ; and asked the tenants
then present, what kept them there so late, and
why they did not go home in proper time of
night P And, they answering that they were
there waiting upon him, the pannel replied,
that it was not waiting upon him they wers^
but upon Glenure, to see what they could gel
by him : that he continued at such conversa-
tion as this, till thev came to the fielda of Aa«
chindarroch, hard b^ Aucbam, when the aaid
John Maccombie, alias the son of Duncan Ma-
cilchallnm, said, that he waa told that Glenore
had a drawn hanger in the room where they
had been drinking, afler the pannel and kiM
uncle were carried out, declaring that be
would not allow them to return to hia company
any more that night ; upon which the pannei
aaked them, why he did not tell him that be-
fore he came away from the house, that be
might see if it was true, and what Glennra
meant by it? and insisted then on going baek
to know the truth of it ; but the deponent and
the other tenants declaring they would not al-
low him to go back, he bid tlieni go about their
business and leave him, which they accord-
ingly did ; and the pannel, and the said James
Stewart his uncle, went to Aucharn, attended
only, as he remembers, by the deponent and a
boy-herd named Duncan Maccannanich : that,
when this happened, the pannel James Stewart
and his uncle were very drunk. De|K>nes,
that, some time in March last, when the de-
ponent and John More Maccoll were harrowing
the tath -field at Aucharn, being the aame
day, or the day af\er the |Minnel went for
Edinburgh, Allan Breck Stewart walked for
a good time al>out the field ; and as thejr
were loosing their horses, the said Allan Breck
and they entered into conversation about FrauoOi
and |>eonle from this country there ; and Joha
More Maccoll' asked if there was any prospect
of any of them's coming back ? Upon Allan
Brack's answering he was afraid they would
not, John More said, he wisheil that none bad
ever come from 'that country ; in which the said
Allan joined him, bayiug, it had disperaed the
friends he most regarded ; and that it was a parti* ^
cular misfortune that the mana(;ement of anv '
concerns they lef\ behind them, fell into the handa
of one that was about to ahew them no manner
of favour ; and declared that he meant Glenure s
nnd told that the coinmonera of Appin wevQ
IS9J
Jfcr Murder.
]iiile vorthv wbcn Ihey did not take him out of
the way befbra now ; and upon their aaying
aobodj would run that risque, not knoxviugwho
vwld Hand by tbein, Allan an8were<l, that be
knew a way to convey out of the way any
{loaoD tbat would do so, in a way that he
would Btfcr be catclied ; and also said, that
they, and the tribe they were of, (ineauiu«|f the
MaccsUft) were not like to be the least sutieivrs
bjr Gkuure'a proceedings. Depones, that the
fini tioM he saw Allan Hreck Stewart at
Indian was about the licginning of the oat-
snriag, which was preity tar advanced in the
nealh of If arch : that he was then dressed in a
udc blue eoat, red waistcoat, and black breeches,
with m hai aod feather : that, while he was in
the esoBlry of Appin, lie was for ilie most part
at the pan net's bouse ; but that he was abUnt
•sec for a considerable time, when he said he
waa ai Ranooch : tbat the deponent saw him
whca he said he was going to Rannoch : that
ha was thea dressed in a black short coat with
silfer boHoas belonging to the pannel, blue
tfwirsers striped with white, and a dun great
ceat, which the deponent thinks belonged to
AUsa Stewart the pannePs son ; and, being now
shcwa the two black short coats in the clerk's
haads, depones, tbat the coat with ilie silrer
bailsas oo the pockets belonge«l to the pannel,
sad is the saoie the said Allan Breck had on
wbcB he said he was going to Uannoch as
aloresaid ; aud ibe other coat, wiih no buttons
BpQO the pocket, belonged to Allan Stewart, the
pBBoel*8 soa. De^iones, that he saw him have
■a the same dress when he came back from
Baaooch. Depones, tbat ho does not mind to
bate scco the said Allan Dreck wear the said
short coat at any otlier time, except upon Mon-
day and Tuesday the Jltb and 12th of May
lasL Depones, tbat upon Monday the tlth
day ef fiay iaat, be went to the wood for fire-
wesd ; sod upon bis coming home in the af-
•tiausa, he found the said Allan Breok dressed
is the said black short coat, working at iiotatoes
sis^g with John More Blaocoll, and John Beg
MaeeaU, two of the panuePs servants, having
SB his owa black breeches. Depones, that he
MP the said Allsn Brcck upon Tuesday morn-
ijif , the ISib of May Ust, in the pannePs house,
1 in the said black coat belonging to the
J and Una trowsers striped with white
Mch as now shewn to him in the clerk's hands,
ads bine bonnet. Depones, that the depo-
■Ht was toid the said Allan Breck left Aucharn
«df epoo the Tueaday , bimI the deponent has
■tassa him since. Depones, that uponFri-
^ evening the 15th of May last, the deponent
M John Beg Maccoll overtook Katharine
MmsbU, servant to the pannel, in the brae
iksve Ibe boose of Aucharn, with a |>ock or
■cfc. Bad aooaetbing in it, under her arm ; the
iipsBiMt asked her, what she had got in the
mtkf To which she answered, that it was
iAsa Bff«ck*s clothes, and tbat she was going
Is hide them ; and the deponent and the said
isha Beg Jlacooll aaw her bide the sack in
vbicb the said clothes were; and that this
VOL. XIX.
A.D. 1752. [ISO-
happened about four o'ch>ck in the saiil after-
noon. Depones, that upon Thursday evening
the 14lh ot May last, afier notice of Glcnure's
murder came to Aucharn, Allan Stewart, stm to
the pannel, desired the deponent and John Heg
Maccoll to bide a laqfe Spanish gun that used
to stand in the brewhouse; and told them,
tbat be himself had concealed a lesser gun that
used to stand at the end of the girnel* in the
barn, under the said girnel, where lie thought
it would be safe. Depones, that the deponent,
and the said John Beg Maccoll on the said
Thursday evening, hid the large or Spanish
gun that used to stand in the brew- house, uniler
the thatch of the sheep-house, aud three
swords they took out of the bam, and a fourth
that was brought by John Beg Maccoll, the
deponent does not know firom whence, under
the thatch of the back of the barn. Depones,
that about four o'clock, Friday the 15th of Alay
last, the pannel desired the deponent to carry
the above arms from the bouses, and hide them
in the moor: I hat accordingly the deponent
and John Beg Maccoll took tne aforesaid large
gun from Hit* back of the sheep- house under
the thatch, and the said four swords from
under the thatch of the barn, and found tlie
gun that used to stand in the barn under the
girnel, where the said Allan Stewart, the pan-
nel's son, said be hid it,' and carried tbem
to the moor, and bid them in the hole of
a rock, above the peatrmoss. and that it
was told at Aucharn, tbat there were sol-
diers coming to the country, before these
arms were hid in the hill, as above. Depones,
that the said John Beg Maccoll, and the depo»
nent, had the above arms, when they overtook
Katharine Maccoll; as aforesaid, with the
clothes. Depones, that the Isrge or Spanish
gun, that stood in the brew-house, was charged
with powder and small drops ; and that there
was no shot in the small or lesser gun, that
used to stand at the end of the girnel in the
bam ; but Allan Stewart, the panners son, car-
ried out tlie said gun, two or three mornings
in order to shoot black cocks in the latter end of
March or beginning of April last. Depones,
tbat Allan Breck Stewart waa also in use
to carry out the said large or Spanish gun two
or three mornings, in order to shoot black cocks;
and about tbat time saw him endeavour to help
the lock of thesaid gun with a file. And being
interrogate for the pannel, depones, that he, the
deponent, has no skill about guns ; but heard
the aaid Allan Breck and Allan Stewart, the
pannel's son,' more than once complain, that
the guns were in bad order. Depones, that
when the deponent came home from the wood,
upon Monday the 11th day of May last, the
pannel was not at home; and the depuneut
was told he was gone to Keels to meet the
laird of Airds : and that the deponent had gone
to bed before the pannel came home tbat
night: and that early upon Tuesday raomiug,
when the deponent got up, he saw the pannel
* ** A meal- ark orcoru-cbest."
K
Arnot.
131] 35 GEORGE 11.
^«iti«'Mit; who f«>|il him that he wu going to
l;>i- >: s h'..ii<;': and that, to the deponent's
'{i :.\rlr>i.4:«^ .;;] m Breck, or the panners sons,
'«r.r (M>. xUin up: that be saw thepannel go
tjwLiAly Li'ttershuna, where Appin life*. De-
;>onefl, that Allan Breck Stewart left Ancfaam
befure the panuel returned from Letlenhnna:
aiid upon an interrogatory put for the panned,
if the pannet had gifen tbealiort black coat the
deponent raw the said Allan Breck wear, al|d
which he has deponed belonged to the panneli
was giren by the pannel to the deponent, or
any other of bis servants, before the said 11th
of Ma^, depones, that the said black coat was
not given to liiro, the deponent, nor to any
other of the servants^ to his knuwledee. And,
being interrogate for the pursuers, after shew-
ing him the powder-horn, now in the clerk's
i)ands, and which bad been formsriy shewn
him when he was examined upon the nreeor-
nititfn, whether lie had ever seen it before tne
time of taking the said precognition ? depones,
be never did. And beinff interrogfate for the
pannel, depones, that Gwnore and Balliereo-
Ian dined at the pannel's house, in company
with tlie pannel, tne day after they were hke
to have quarrelled at Kintalline as aforesaid.
Depones, that it was ordinary for the pannel
to gite a dram to bis serrants every tiaie he
distilled a double drau{rht of whisky. l>e-
pones, that the double draught was a ifistilling,
when the deponent and the otiier servants got
the dram mentioned in the first part of this depo-
sition. Cauta scientUt pateL And this is the
truth, as he shall answer to God. And declares
he cannot write. (Signed)
J. FfiaoiJSON. Arch. Campbell.
J<^n Beg Maecoll* servant to James Stewart
pannel, ased 27 years, unmarried, sworn,
purged and examined ut tupruj by the sworn
interpreter,deponefl, that the latter end of winter,
or beginning of spring last, early in a morning,
the pannel gave a dram to the deponent, Don-
ga! MaccoU, and Johu More Naccoll, both
servants to the pannel, in the pannel's brew-
house : that the conversation falling upon
Glenure, the pannel complained that Glennre
was no friend of his : but that that was not the
worst of it ; but that if he was to so on as he
did, it was likely in five years he wouM be
laiid of Appin ; and the deponent and the other
two Maccolls answering, that that was likely
to happen, the pannel replied, that he knew
once a sett of commoners m Appin. who would
not allow Glennre to carr^ matters with such
a high band ; and to which the deponent and
the other two Maccolls answered. That tliey
did not believe there was any commoner in
Appin, that dnrst contend or strive with
Glenure in such a way : that, immediately
thereafter, the deponent and Dougal Maecoll
went oiH of the brew-house, leaving' the pannel
and John More Maoeoll there. Dqiones, that,
* See the PaDDePs Dying Speech at the
•ndeflheCaM.
Trial of Jama Siewartf
[ISE
after they went out of the hrew-kouse, either
that day, or some time thereafW, the depo-
nent and Dougal Maecoll talked tngetkcr^
what the import of this ceovemtion might
be ; and that the deponent was at a loss whe-
ther to consider it as an enconragement to de-
stroy Glennre, or as a complaint against the
ccmimoners of Appin, as not being so fkithfvl
to the pannel as he expected them to be. Do^
pones, that, in Marcb last, Allan Breck Stewart
came to the pannel's house, late in the evenini^y
dressed in a bloc side coat, red waiatcost, wSm
Mack shag breeches, and a feathered bat: tlmt
be kwked into the khcheu, and went ianiae-
diately to the room where the pannel and hie
family were: that aflerwarda he used to go te
the conntrr to different places, and eome fre-
qnently back to tlie pannel's honse: that euce
he renmmed there a week, which is the longeal
time he stayed there at one time. Depencs,
that the said Allan Breck Stewart came te the
pannel's bouse from Fasnacloieh upon Monday
the nth of May last, about mid-day, dreaacd
as above: that, upon the evening of the amd
day, the deponent saw the said Allan Bntk
dremed in a black short coat with silver bottow.
Depones, that there was two short black ooals
with silver buttons in the pannel's honse ; the
one belonging to the pannel, and the other la
Allan Stewart, his son ; the deponent does eoC
know which of them the said Allan Breck had
on. And depones, that the coats were so like^
that he could not disiinguisb the one from the
other. And dep4»nes, that it was one of these
black coats he hud on, the deponent having^
seen him, the said Allan Breck, near the
houses, in his side clotlies; and sohm tine
thereafter, coining from the boose, dressed w
the said short coat, in the evening of the
said Monday the 1 1th of May, and came where
the deponent and John More Maecoll were
covenng potatoes, and wrought with them fbr
sometime. Depones, that, sometime tbere-
afler, a young lad, brother to Glenco, by
name Donald, as tlie deponent thinks, eansete
them, and told that Glenure was come boeie
from Edinburgh, and was to go to Lochaber;
upon which, some conversation happeiuar
about removing the tenants, Allan BreSsk saio^
Devil a bit of the new tenants would get poe-
session, unless they had a warrant to shew^
or come in by force. Depones, that, when the
ssid Allan Breck came, upon the llth of May
last, to Aucharn, the pannel was seeing the
deponent, John More Maecoll, and I>>anl
Maecoll, working at potatoes ; and that AlSui
Stewart, the pannel's son, was likewise there:
that, when Allan Breck came, they were sitting
all together ; and that he seated himself hy
the pannel and had some conversation in
English, which the deponent docs not uuder«
stand. Depones, that Charles Stewart, son t»
the pannel, and Stewart, daughter to
Fasuscloich, came to Aucharn from Fasna-
ekNcb, a little after the said Allan Breck. De*
pones, that upon Thursday the 14th of May
last, the pannel gave a letter to the deponenty
iSS] ^H^^ ^r Murder^
|iWMif««d to Chirlot SteHart, notary pub-
lie ■! Mmrybitrgii ; and totd Ihtf iJepoueol^ that
lis ktter ii»tlo ifuike or en use the fiaid Charles
\ to the country of Appin to pro*
GiMiurPi in cue he had not s suf-
icMttlwiffiiitt to remore the l<»»aiii« of Ard-
•nitl. Oipiwciy lh«t the piimtel desired ifte
tiM ni«ke lU po&siblf di<|:!i(ch« iind dt^
rM» Bfvck MacGombieat Kiniulline, and
ri Jubo More MitccutI, ?KTVHrit to lUe
iwlio was then at KniUilinc, to ferry
Bt from RiniulliQe to Oiiich, being'
mum Mttrier lliati the ferry of Ballacttelish.
AfpOM*. llMt Ibe |iMiD€l ^\m told him, tbnt be
9M ia g«A n«i» iiioc»ey li-om VVilbamSteHart,
mmdbmaiLwA Harybun^h^ to pay for miik-covrs
I wen boi^bt for him in the country ; and
I ii IIm uoiittv was not aenti he \voidd not
»tbftfiii«rs. ]Jepoo99, thai he waa terry ed
m_ HJMtalboa lo Unich, and went on to lort
WM—i» aii aol Glenure at the three-mile
mmm^ mh^ rnkwA Ui« depooent from whence
ba enocl Ta wbicb the deponent ansff ered,
* Ofer Ketlis. D«|>oueaf tbatr
vrith Cvientire^tt serfanl, he
barf aofpB «aaf artatioa wiih him, and told htm
ba wm ^^ ta Fort W i It lu m. Depones , t hat
ba a^ •at frocn Audiarn alNjut 7 or 8 o'clock
ja Iba mmmsi^ and made all the dispatch be
1 la F«ri il iitiazn, where he arrived about
'aiaalr, DcfKNiea, that irl^n he came to
WiMiam, be dehveriMl the letter he got
INai tb« f«aoal to Williaju Stewart, merchant
l« MMy%mM\ghn who told hitD, that Charlea
llawait iba aolary waa not at home, he bar-
iaf fane to Ibe braes of Loch a be r in the
aad told the defionent, that he, the
, bad wrote to the panne t in the
Ibai there was a notary alnng^
> who would lerf e the pannel aa
•AaaGleiiiira. OepoueSf that he does not
faaMaiharlbai be asked for any money from
WHIiMi Sirwart, n^ did be give him any, but
miAf ba would tend aervanti for the cattle
be atayed a rery short lime at
WiUiatii : tbat the taiti n tlliain Skew»rt
if he wanted victuals ? Upon the
t*a antwarin^ he did not, the aaid WiJ-
iUgbi binci into hb liouie, and g^ave him
1 1 aail tbe depooent imtneiliatety re-
hMit Ipjr ibe aboit road to tlte ferry of
I. aod IbflMl Glenure at the terry
biaa : ibai iba dtfment required ot tbe
le ferrv bim immediately, and the
daairaa bim to si&y idl he would be
f^ilb Clamire'a hor^ies ; but the depo-
* la bitn that tbe stream \vaa rapids
_ aw aome time bffnre they woukJ
9&tf Iba batsaa, be oui^ ht to ferry him imme-
Jattl/, arbiab bif acconliogly did , and that
^m fljfllt ba about 4 o'clock : that u(>ofi biji
mmm^.^km farry* ba nit Archibald Maciuiah,
fcrfv apao iba Appto ude, lo whom be told
«hwa ba faa4 baan, ami bia errand ; and that
iba laid farrjrar told the drpne nt, that he waa
that he wm i^oiiig to meet
B, that were to
'.■s:
A. D- 1752- [131
come to Ard!»biel, bad come to Olenduror with
their cattle ; and were tn Liikc po«sessioii next
day ; and the deponent laid him, that he dul|
Doi believe tliey would get possesifioa till Ibeif ^
warrants were seen. Depones, that, a little
iherealler, be met Alexander Stewart elder of
Dallacheliifb, to w tiom he told where lie had
been, and his errand, and the cimveraatioa he
had with the ferry -man; and Ballachelitih de
aired bim to tell bis master, if he would send]
for bim, he would go along uith him lo M0I
Glenure's waiTaot Depones, that he paa
through tbe wood of Leitermore, and met i
saw nobody there : that he went then homafl
and gave the pannel an account of bis er<*l
mad. That he was hardly an hour thera||
when John Mackenzie, Glenure's 8ervanl|j
came to the door calling for tbe pannel : thttl
the pannel went immediately ta the doofpl
and aaked the aerrant, what was tbe maltertj
and what news be bad P To which the Bervavtl
replied, The worst ( ever had ; my master m\
murdered in the wood of Leitermore: upom|
which James Hiewart said, Lord blaaa me ! <
he shot ? To which the servant aoiweredf I
be was shot, and said the pannel ought to go '
and take care of bis corpse : thut the serraat
immediately went olT, but ueither tbe pannel
nor any of bis family went near tbe corpse ;
and the pannel said, that, aa he and Glenuro ,
were not in good terms, and some of the peoplo I
that were to meet Glenure bad arms, he did I
not cai-e to go near them, not knowing what]
might happen. Depones, that his master saidt ]
tbat it was a dreadful aecidcut, and was alraiii f
would bring trouble on the oountrv ; and ap« j
pea^ed to be sorry for what haa happeneq*]
Depones, that, upon the evening ol Friday tli#|
15th of May last, the deponent and tlie said I
Dougal l^Iaccoll overtook Katharine Maccoll,
servant to the pannel, going up the brae abov# j
the house with a sack, and tKHnetbing in it, ]
under her arm ; and tbe said Dougal Maccoll I
aiked her, what she had got there f To wh*
she answered, That it was Allan Breok%|
clothes, which she was going to hide ; and sh«
hid them accordingly in tl^ deponent's pro*
aence. Depones, that, when tbe aaid Allan I
Breck came first to Aucbam, he used to lie ia J
a room tu the tower end of the bouse ; but al^l
terwards be, and the pannera sons, and anyj
young people that came about the house, when
the aeaann was more advanced, used to lie iu th« ]
barn. Depones, that, upou the aaid Friday
evening tbe 15th of May lait, Margaret)
8tewArt| tJie pannePa wife, desired the de|Mi-J
oent and the said Dougal Maccoll to bide all j
the arma that were abimt the house, as tbera^
was a party of soldiers coming to tbe country :
that accordingly they took two guns and threa ,
BwoLxis, and a fourth «word wa* delivered to tba
deponent by Allan Htewart, son to tbe pannel ;
whidi two gvns and four :^word8 tbe deuonaat <
and tbe aaid Dougal Maccoll hid to the oraa % |
good way above the pannera house ; and tlitt 1
two guns in tbe clerk ^s hands being shewn ta \
tbe difilimilt, defiooeai ibat tbeia ware
135]
25 GEORGE IL
Trial of James SievMrtf
1136
9ame two f^iins that were hid as abore. De-
]M>iies, that the Urfj^est of tlie t^uDS, now fshewn
the (lepooeiit, was loaded, aod lay in the brew-
liousi. ; and the deponent belietes, that either
Allan Stevrartfthe pannePs son, or Allan Breck
btewait, charfi[e4l the said gun; forthedepo-
iioiit saw AlUn Breck Stewart iiave the said
gun Ronip time belore, and ^o with it in order
to Nhoot hlack locks : titat late on Thursday
evenin*; liie I4lh of May last, after notice came'
of <>}euuti:'s murder, the said Don^al Maccoll
tuld the (U*poncnt, that the pannePs wife had
desired to hide all the arms about the bouse,
not knowiujijr but ihat some soldiers mi<i[ht come
to the country ; ufion which the deponent and
the said Dougal carried the said loaded gun
from the brew-houKc, and hid it umler the
thatch u|ion the (Mitsi«l(f of the sheep -house, and
carried three swords out of the barn, and hid
them under the thatch upon the outside of tbe
said Irarn, Mat^ that bara whnve the pannePs
children and Allan Breck used to lie : that,
upon their being desired by tbe said Margaret
Stewart next day to hide the arms better, they
took the foresaid loaded gun and three swords
out of the places where they bad bid them;
and upon their inquiring for tlie other gun that
used to lie in the said barn, Allan Stewart, the
lianuel's son, told them, he had hid it under the
lar^cgirnel in the barn, and told them they
need not stir it, as it was safe enough there ;
hut they answered, as they were hiding the
Test, they would hide that likewise ; and ac-
c<»rdingiy the deponent went and took the said
Ktm from tlie trimel, where the said Allan told
him he had hid ir, and concealed them all to-
gether as above: upon recollection depones,'
that it was upon the Thursday evening the de-
ponent and the said Dougal Maccoll inquired
about the little gun which lay at the end of the
girnel in the barn, and that the said Allan Stew-
art, son to the pannel, told tbem he\ad hid it,
as above, under the girnel. Depones, so far as
he can remember, be did not see the said little
gun upon Thursday, but saw it stand as above,
cither upon Tuesday or Wednesday precedin(r>
and used for some time preceding to see it
stand in the same place. , Depones, that it was
upon Friday evening the deponent took the
said gun from under the girnel, where the said
Allan bad hid it; and adds, that the reason he
did not see it on the Thursday was, that he
was from home almost that day. Depones,
that he did nut see the said little gun load-
edi since March last, when the black cocks
were crouding ; that then there was a shot
of drojis in it, and the said Allan Breck car-
ried it out one morning, and told that it
mis-gave with him thrice at a black cock, and
shot with it the fourth time without killing
the black cock. Depones, that the brew-
house, where the said large gnn used to lie, was
always locked, bat when people were in it:
that the barn, where the said little gun stood,
had a lock and key, but waa not in oae to be
locked since the crop was renoved out of it,
whicli 1I9S at the Uw» tl^ wcrt dpne with
their oat-seed, which was some time before
May -day. And, bein^ interrogate for tbe
pannel, depones, that neither of the guns were
in good order: that the large or loaded gun
was in use, when going to be snapped, to stand
at half-cock, and the little gun was in use to
snap or misiire. Depones, that the little guo
had an old wore flint in it ; and that he ob-
served this flint in the said gun, when he was
in use to see it stand at the end of the girnel as
above ; but did not observe whether it had a
flint or no, when he took it from under the
girnel as above. Depones, that he knows no
fault the lock of the little gun had, but its being
in use to misfire ; and that the lock was on the
said gun when he hid it the Friday evening as
above. Depones, that w hen Allan Brock canne,
uiKin Monday the 11th of May last, to the
place where the pannel, deponent, and others,
were covering potatoes as above, they had sit
together but for about a quarter of an liunr;
the deponent went to work at potatoes at a
greater distance, and, before he went away,
card a message had come for his master, to
meet Airds at KMl, and lieard his master speak
of going there ; but when be went, or wlio
went along with him, the deponent does not
know : that the deponent continned working at
the potatoes till the evening, and the pannel was
not come home when he came from bis work :
that the pannel came home at bed- time, ac-
companied with John More Macilichattan, who
lay with the deponent that night. Depones,
that it was a while after (the deponent cannoC
say how long) the pannel parted tVom the de«
ponent, and the other people that wrought at
the potatoe-ground, that Allan Breck came
dressed in the black short coat as above, and
wrought with them at the potatoes. Depones,
that they all got up t(»gether, atter the sahl
Allan Breck came to them, and sat with them
as above ; and lie thinks the pannel went then
towards the house. Depones, that Allan Breck
and the pannel were in use to converse to-
cher, sometimes in English, and sometimes
in the Irish language. Depones, that, when
be went to Fort- William, with theabove letter,
to Charles Stewart, the notary, he had no
orders from his master to inquire after the mo-
tions of G tenure, or to acquaint any body
thereof. Depones, that he never saw the said
Allan Breck Stewart change his clothes, and
5ut on short clothes, at any time, at the said
ames Stewart's liouse, before the said lltb of
May ; but that, as the deponent best remem-
bers, at the time the said James Stewart waa »t
Edinburgh, he saw tlie said Allan Breck dressed
in a black short coat, a dun liig coat which the
deponent thinks belonged to Allan Stewart, the
pannePs son; and he heard the Mid Alka
Breck, or others about the house say, that he
was then going to RaniMich. Cauia Mcientim
paieL And this is truth, as he shall answer
to God ; and depones be oannot write.
p. GiUkt. Aub. CAMraiy..
m
for Murder.
A.D: iV^'i.
flSS
hftprnii^ in {r^Qernl Pulte-
■f^** r«|riment u1 ((Kit, ritArried, ngeii 52* '
^tOMai eitnl, iiwori», jiurt'CMl ami cxammeil •
tl mprm^ iftefMnies, that, i1|mti the *J3(I of May
Imi, lie wms 1 by Mr, Campbell ot
BaraldiM, tl %irrre some nrm^ bid
" r* I ' ' ' nnoepB fioiise; imd
■ *^' n llir (luragrapb of
I " l«o conjrnantls
ikt rvftvtftt lit t)t l)diini^«4,
i^MM4 U» ( I . !u the tuloitrl
^Mtrft) tSie firponent to ^o m fenrcU of such
•!«&. f^ccvritmgly Ibe tlrponent wpnt tbat
awrilh ApftHy, *ml Uwk riloo^ with biin Mr.
kk CtmbO^W M* Auebfiiiiiculbm, to ibiect
9 ?M«; ttail, vvben tbvy came to a bilt
f tbe iMonrPii house, Mr. €anipf»f!ll touml
'"ma bill 4iliof*! the )>annel'5 bou&e
|f»i» futMlcvti ant) tour broad -swords, wbt'reof
bftvitt^ uif nr I ' ' ir tit, the deponent
wwd aad - u out. Arul the
I *ir *.i^ r^, ijt'>» IN ibe clerk's hdnds,
«li«^ii m the depnnent, drpooes, that
m? itir f rry same iDzeeu be saw taken
xfbffiBui; and depciitt^ii, that tbe br^'ert
!■«<» furies IV as toaded, and the other
M; aAit ib.i^ ilraMD the shc^t of the
_|Bii|rr1 pii^c 1 1 to be lunded with small-
means drops and small shig
and it appeared to the dt^po-
jt| uiiloadfd piece had been
NIC' ptit his finger in the
p brought out black. And,
for the panoelf whether a
ittctt »» I aid by foul, will not, after a
'• lime, (lie nne*s finger, when put in
Rifncatltfof it, as well a» when it has beep
f drpones, hecannnt leU^ not being-
i I** M#»t' arms nsed so. And de-
piHK,tl >d unbi»ded uiece bad a Uick
«!■•**' <(>e; but wbicb bad only one
wttfm'^^tt m It. But deponei, that a ^un,
iMftfltfa Irtck With mm »crew-uail, may be 6t
mmin to b« fired with; and adds, that that
ffvnftff tin* lock wanting; tire nait^ was tied lo
^^ y a itrin^f, I>ppoiie«, that the
f*< /eea, were carried abiu^ lo Fort-
Wk-u4ii. v*hrre the di'tuMunt delivered them
l» thtt adjutant at I on Wdbatn ; and does
Ity what m*: lid loek upon
I |fa0ce« BOW vd8 lost ; btii
If to bate U't'K uy >i»€Klenl, Cauia
jmitt. And thU ts irutli, an he shall
l«God. (Signed)
Ja. Puioeacm. D. CriApEAcr.
afvil
• I Ancbtnsicallan^ mar-
wilnei6% cih^d, !»worn»
u t tnpta^ depotiCHf That
, bt: thinks on the TSd,
iiipeau to go along"
..cli of amif ; and,
%*, above the punners
<0r Ai»r ilepontnt di««overed two
in # t (HI be immediately
Uic ' ^:i« with him, vibcn
taknii mik vi uic covc ; 9* aUo, tbere
wnt also thffe three or four broad -iworda. De-
pones, that one of the ifuna was b« litier than '
th** t»thpr; «nd the bfibti'St gun had a ktick
bid fiUin*( the lock tii'd by a hUma about thfr
stock : but, whether the said loik had any
Bcrew-njiil, or not, he does not remf mber ; anil
lljiil ihese arms were carried a*>uv by captaia'
Chapean. Depone!;, that the ]i|r|»u^t of (be
said two uun^ was unloaded, and the bcarieat
louded : that he saw the shot of the loaded gun
drnwn, which consisted of drops, with some
siuhU ttliiuf among- them, Depoues, that, tn
order to knuw whether the unloaded pifce bad
been lutely fired, severals put iheir fing^er in <
tbt* muitzle of it; and particularly the depo-
nent ; Htid tlu' \m\*er comiusf out black, ht-, and
the rest uiih him, fiom thence concluded, ibar
it hnd been lately fired. And» beioff' interrogate i
fur the pannel, m betber a musket that has been
laid by fuul, ut^ter firincTt ^vill not, in like man-
ner, f^te a man*!* hni^ev put in the mosezle of itp
after it has been tiied a month or longer be-
fore ? depones, that he n€?er made thai trial
upon a s^un that he knew to have been so louj^
betbre tired. Cau$a scicntitt patet. Aadthii
is the truth as be shall answer to God.
(Signed)
J A. FEacnsoN, Pat, Campbell.
Wiltifim Stewart inerchtnt in Maryburgh»
aged thiriy-sijc years, married, sworn, purged <
and examined ut supra ; and^ beingf shewn d
letter, <laled at Maryborgh lbe'l4tU of May
last, signed William Stewart, and addressed on
the back to the pannel, beincf the writing num-
ber 10, tn the inventory subjinned to the lil>el ;
depones, That the letter is of bis hand- wnlinf>, 1
and was subscribed by him, and sent to Ibfi*'
[lanneli of the date it bears, by Ewan Macken-
zie, a common carrier in IViirybnrgb. And,
beintf alsn shewn a letter dated at Aucharn tjie *
1 4th of i^Iay last, eight o'clock in the mornincr,
sig'ned Jame^ Stewart, and addressed on the ,
back to Mr, Charles Stewart, writer at Aucbin-
tour, depones, that the said letter was wrote
by the pannel, and sent, of the date It bears, by \
John Beer Maccoll^ and in absence of the satd^
Charles Stewart, who was not then at Mary*
bur^h, was delivered by the said Maccoll in I
the deponent, who broke it open, and told
Maccoll, that Charles 8rewart was not Ihen in ]
Marybiirgrh, but that he esrpected him thai
nif^ht, but thought that he cnuld not go alon^
with Maccoll : ihat Maccoll asked the depo-
nent, if be should wait for htm, or go after biro F I
The deponent answered, it was needless ; for, I
if Charles Stewart could go^ be would take m ]
boat. And, being interrogate whether ht|
wrote any answer by John Maccoll, or if h%\
gave him any verbal answer to the post^ript, !
wherein the pannel wrote to Charles Stewart, I
to tell the deponent to send him eight pouudi I
iiterlmg ? depones, he gave no answer iit ]
writiiiLf ; and thinks be did not give any verbal I
answer, if it was not, that he bid him tell bi^J
master be was not in cash, which was the cafe« T
And deponesp thai the deponetit w ta htmsetf '
X
mi
25 GEORGE 11.
Trial of James Stewartf
[140
intended by Uie William in the postscript
D«{)ODes, that Maccoll did not stay three
minucea with the deponent, when he went
away. Deponea, that the next day, being
Friday, or the day thereafter, the deponent
had a message from the pannel about ten
o'clock forenoon, or betwixt ten and tweke, by
Alexander Stewart, packman, who told the de-
ponent, that he was sent by the pannel to
Glenevis, and was ordered in his wair to call at
the de(H>nent to send the pannel fire pounds
sterlinflf ; and that his errand to Glenevis was,
to desire him to send for a horse that he had
bou((ht from the pannel : that the deponent
told the packman, that he was not in cash, and
could not send the five pounds ; upon which
the packman said, that the five pounds was to
relieve some cows that the pannel had bought
for the deponent at Ardshiel ; and, if the depo-
nent did not send the money, he could not get
the cows : that the deponent said, he was indif-
ferent, but bad not the money to send ; upon
which the deponent's wife desired the packman
to go forward to Glenevu, and to call there in
Ilis reloro, and he Hould get the money, lie-
cause they couM not conveniently want the
cows : that the packman accoidingfly went
mway ; and the deponent's wile, as she after-
wards told him, for he was not present, gave
liim three guineas : that the deponent is sure
the money was not giveaon a Sunday, and
thinks it was on a Ssturday ; and therefore
believes it was upon Friday the 15th that the
packman first called, the deponent being cer-
tain that a night intervened betwixt his calling
and getting the money. Depones, that he had
no conversation with the fMickmatt touching
AUan Breck Stewart, whose name was not
mentioned b^ either of them ; but tlie deponent
asked him, if be had come by the road where
that unkicky murder of Glenure had happened ?
And the packman told him, he did; but the
deponent did not ask htm who was suspected
for it ; nor bad any otlier oonvemtion on that
aobject, there being a great many people pre-
sent in the shop at the time. Depones, that
the deponent received two of the oowa about
eight or ten days after, and other two he did
not g^ at all. And being interrogate for the
ennel, depones, that, upon AUan Brack
Bwart's first coming to this c
country, which
was in the month of February or March last,
the deponent saw him at tidinburgb : that
thereafter, upon the Ist of May last, the depo-
nent happenng to be at the pamiel's house,
Allan Breok Stewart came there from Rannoch,
and was dreased in a short black coat with cleer
buttons, such as these now lying in the court.
Depones, that when the deponent saw Allan
Breck Stewart at Edinburgh, which, he thinks,
was in Fcbmary, be told the deponent, that it
was then but three or foor days sanoe he arrived
frons France. Depones, that, at that time.
AUao Breck Stewart waa dreased in k>ng
olethea, a blue eoat, aad, aa the deponent think^
a red vest, a hat feathered m the iande. De-
Ihtti wbfB the daMBem wm at
1
pannel's, the 1st of May, Charles Stewart waa
there also, in order to go to Glenure, and inti-
mate a sist that hail b^n obtained in. name of
the tenants of Ardshiel, upon a bill of suapenaion
of a removing against tnem. Depones, that
Allan Breck Stewart told the de|ionent, that ho
had been a soldier in the kind's troops at the
liattle of Preston ; and he thinks, he said, it
was in Lsscelles' regiment, but is not positive,
uhelher it was Lamsellcs' or Murray's. And
depones, that thereafter he was in the rebel-
lion. Depones, that, when he was at the paa«
nel's house, the Ist of May, as aforesaid, Im
did not sleep within the pannel's boose, and
seemed to be on the watch, lest he ahoukl be
searchetl for. And, beinjg interrogate, whether
Allan Breck Stewart did not then lie in the
barn, and some of the pannel's ehikiren with
him? he saya, it is very probable he might;
but the deponent knows nothing of it ; for the
deponent saw him next morning, and, he thinks^
breakfasted with him at the pannel's houaa.
Depones, that the deponent is first-conain te
the iiannel, and also Wm brother-in-law. De-
pones, that, before Charles Stewart went with
the tenants to Gleniire's house, upon the let ef
May, the deponent heard the pannel say to the
tenants, that they might go, or not, aa they
thought proper ; but he would be far firom
advising them. Causa $ci€ntim patet. And
this is truth, as he shall answer lo God.
(Signed)
P. Grant. Willum StsmuSb ■
Barbara Watt, spouse to William Stewart^
merchant in Maryburgh, aged twenty-eiglkt
years, aworn, purged and examined ui svprc,
depones. That the day immediately after the
murder of Glenure, about mid-day, Alesandir
Stewart, packman, brought the depooeH'a
husbaud, the preceding witness, a aieangB
from the pannel, to aejid him five poimda atei^
ling, to pay for some cows that the pannel bed
bought tor him : that the deponent's fanaband
was angry at the message, and said, that he
had not then the money to give, having given
away aome money that morning; hot that
though be bad it, he would not send it ; nod
the packman answered, that he waa a snffidaal
but himself for all the sum, though the pannal
bad not aent for it: that the packman told «t
the aame time, that he was goin^ to Olcnefii
on aome message from t '
horse; therefbra the '
desired the packman t
from Glenevis, and he would get the moneys
for that they behoved to* have the oet^ to
stock a farm they had : that thia ounfSfin
tion happened in the deponent'a ■boo, when
several other persons were present. DepoQfli,
that, next day in theafVemoon, the denoiiMit^
husband not being then at home, the ilepeneBl
met the padcman in the street of Marybuigh,
and happening to have three guineaa tben in
her fiMrae, ahe gave them to himthere in ikm
street, and called her servant-maid to be wil-
ims» beoeae Jthm wee Bo.lattcr ^^Mfctlw pw
ne was goinr lo uncnevw
Mnthepaond touching •
I deponent imerpoeed, and
I to call there in hia return
fw, OOP i^cdipi
Ml iiMwrr lo G«(],
P. GlA*^.
J&r Murder*
grren by the jmcfrrrmrt.
Ami ibts is truth, »9 she
JURQAftA Watt,
Stfwart^ trflTeHins^ packman in
ihirtVi iTiimflrried;, witness cited J
amirm^ ■■■■♦il taid examinrd vf rupra^ by
Ai^Mh Campbell, writer in ItiTerary, f^worn
iMvpiiicr ^mvnif , ilrpooes, That, upon Friday
teUifc tlif of May f«^, nhout twelve o'clock,
^JHWl iioir^ me il«fM>neDt to ^o to Fort-
t WilfifttB Stewnrt, merciiant there,
I him fire ponnth^ or fife guineas ;
fbe Hepooent, thui his triend Allan
t to leave the conntryf a9 there
liiw into it, am! that he might
f of Glefiure*a murder ; and thtit it
t upon him, the itannel, to soppty
I Breck in money ; and the pnn-
mI ^Mirtd tlMilepODent to leirthesaid William
, that be osoBt srnd him money, though
"* bvTVw it tWmi twenty purses; and
I afao to tell the said William to give
ia Htfm pounds sterhng to John Breck
" ' an^ to Appin a I Koafisnacoaii,
f he ramr to demand such a sum ; and
i de-ftred llje deponent to deriinnd tour
"nft more from tlie said Witliam,
Cbt pHee of ft couple of mi Ik -cows boug^ht
iirliiio. Depootes, that^ in eonseqitence of the
he went to Fort- William,
1>e irr- fy in the cvenlugr: that
t tfcff »^ ) Stewart^ and dem ander)
I biiD« for Hit; use of the pannel, the two
r ilarf^-ineiitioned : that the said W iMiam
I Mat be bftd not money » but desired the
; la go lo Glenens, and that he, ihc
I Wnfiaen, had tM.^tr.^*:. t© uieneti!!^ would
liitltlffi ilrponrni the moniing^, and
l^banrbaemnd. i ' ^ ; i^h. thxt tlie pannel
inra^tbe deponent to trti iiie said William
r l» amd notice lo Glpnevisr^ that he
for a Ft«med honte GlrneTis had
the pan net J)fpf^ttr<r, that he
««DII» tltco^rif, where he out sun -
«t, tad a&Ayed three the »a h oij^ht:
Aa^ i0 the aaid Wiilinm did nut come there
iMvitj^ HHimmft. Hie Iflth dav uf May la^t,
AtAfptociit V n r; to Port^WiHiHm, and
tmUmaalci Stewart upon 4 lie street,
1(1 III It um answer was ready ? that
f Willram Mid, that be would lei him go
J, feodwinil i'*'^" * ■ '^-sn house, and
^ tbarealUr .irt, ipouae to
i W(nt«iii,€amr u u. ... ., and gate the
I lhr«* gwooui. with uhich the depo*
Lttck imnjrtll;ik'U to Auchara, and
liesaid Hatur-
Lij he came to
iicit at home; but
rt»al, tioTrCf- came,
' ^'JU,
af
^aiir tlie orp
tatlis lanacl, mild
' liriAOcicfi
I a ^fiari«r ol* a iPiile Umn Auctt^in . that,
8w ■ aoir te f>, 1 19, of tUit ? (dinoe.
A. 0. nss.
rmSmtmty upon Ihia nottoe, Mrt,
the pann^l'a wrfe, and the deponent, went tti'^
Inshaiif, and by the way tlie deponent offeretj'
the three guineas he had brou|;ht from Port-
William to Mrs- Sicivart, but she desired him^'
ro keep them : that, upon their arrival at IqV
shntg, ihey found the pannel a priaooer; but.
Mrs* 8tewirt and the rloponent baring had ao'
cess to converse with the pannel apart, the pan^
uel asked the deptment, what money hebroucrhf
from Fort- William? and upon the deponent'4"
telling him, that he brought three guineas, the
pannet pulled a green purse oat of his pocki
out <»f which he took two gt]iD€its,aDd gave theni
to I^Int. Htewart, and Mrs. Stewart delivered tb
two guineas immediately to the deponent ; an^
the pannel desired, that the ttve gaineaa shouW
be sent to that unhappy man^ meaning Allad
Breck, to see if he could make his escape
and pitched upon the deponent as a person Ina
should go with the money ; and does not rcJ
member positively, that the pannel spoke abou'^
Allan Breck ^s clothes : that soon ihereafler th(
pannel nas carried off by a parly to Forl*Wil*
liam, and the deponent returned to AucharW'
with the pann* Ps wife : that the partv and pan- '
riel called at Auchnrn, and took a a ram ; ati^
upon their going off, Mrs. Stewjirl.the panned
wife, io»il iht' deponent, that he must go U
Allan Hreck with the (i»e guineas and hr
clotht's ; uud upon the deponent's inquirini
where he would find him? Mrs. Stewart tol
him, (hut he would cast up in Koarisoacuatil
Depones, that, ^ome time after night- fall, th(
deponent got his supper at Aucharn, and hov
soon he was done eating, Mrs. Stewart, tK(
pannel's wife, carrieil the deponent to the bad
uf the brewhouse, where there lay a sack, om
of which the said Mrs. Stewart took a blue sid
coat, red wui*>tcoat, black breeches, a hat, am
!«ome shif Is all which she delivered to the 6i
ponent,orderin5j him lojjo with theclothesai
money lo Koaliauacoan immediately, and d
liver them to John Breck Maccotl, boumap
Appin, if he did not meet Allan Breck hiinself^
Depones, that the said Mrs. Stewart directed
the deponent not to carry the riolhes lo Jobti
Breck MaccoU's house, lest any body tpighi
Kee them. Drpones, that be declined going,
and told Mrs. Hir^wart that she might send
some other peruon, and I hat, at any rate, he
dill not chuse to go alone in the night-ttme;
but that Mrs. Slrwurt inMitted uiwn his goings
telling there was no 4'tlicr body kbe could send»
»n tkjth her servants were ^0T>e to Fort*Wil-
iiam, and dpsired ihe deponent to carry his
aister^ Marg^aret Stewart, a part of tke w«y
with him: that accordingly the »uid MMrgaret^
\m sister went along with the de]>ou( ut bs farai
Larich in Olenco, where bhe piirtt-d «uh htn
about daylight Sitoday-moriijng: that there
afler the depoornt trav(*lfed alone to Koalisna-
cotin, and lefv the clothes, as; directed, at the root
of a lirtree, at somi; distance troin the houses ;
and as the depoitent tvas going to the hou!»e, he
met said John Brei k !\IaccoI1, and asked him if
Allan Breck f*as tlKfrr? And upon hi* deny-
s
US] 25 GEORGE II.
10^ that he was there, the depoiiuut ex|)re&scd
■omG Kurpi'ise, and told that he was sent with
money and clothes to him ; told from whence
he came, and how he g^ut iiie money and
clothes ahove-mentiooed ; uiion which the said
John Breck Maccoll told the deponent, that
Allan Breck was in the heugh of Corryna-
keigfh, above the house of Koalisnacoan ; and
if the deponent inclined to see, the said John
Breck Maccoll directeil him to i;o to a hill
above the houses and whistle, and that the said
Allan Breck would come to him : that the de-
ponent answered, he hod gone far enoui|;h after
the said Allan Breck already, pointed out to
John Breck where he had Ictt the cloihrs, and
ave him the five guineas to be given Allan
(reck. Depones, that he went to the said
John Breck's house, where he slept for some
time, and thereafter dined with the said John
Breck at his house. Depones, that the said
John Breck Maccoll told the de|M>nenf, he did
not knaw how the said Allan Breck could leave
the country, as he had no victuals, and he, the
said John, bad none to give him, and desired
the deponent to go to Mrs. Alacdonald of
Glenco's house at Infer, and get a peck of meal
for Allan Breck's nse, which the dvpouent re-
fused. Depones, that the said John Breck
Maccoll told the deponent, that, unless he had
come with the money and clothes, he, the said
John Breck, would nave been obliged to go to
Fort William for money to the said Allan
Breck. Depones, that he, the deponent, came
back to Aucharn upon the evening*- of the
Sunday the 17th day of May last, and ^he pan-
nel's wife asked him if he had seen Allan
Breck P And upon his answering he had not,
and telling that Allan Breck was at Koalisna-
coan, though he had not seen him, and that he
had given the clothes and money to John Breck,
she appeared satisfied. Depones, that the said
John Breck Maccoll desired the deponent to
conceal his carrying the clothes and money to
Koalisnacoan, as alM>ve ; told him that he could
DOt prove it against him, and that he could
safely depone he did not deliver the clothes to
him, since he only pointed out where they were.
Causa scientist patet. And this is the truth, as
he shall answer to God. And declares he
cannot write. And further depones, that he
is a distant relation of the pannePs, though he
cannot tell the degree : that his father lives ai
a (juarter of a mile's distanoe from Aucharn ;
and that he, the deponent, used t'l be often in
the pannel's house. And this is also truth, as
he shall answer to Goil. i
(Signed) j
P. Grant. Archibald Camfdkll. !
John Breck Maccoll^ bouman to Appin in j
Koalisnacoan, aged forty years, married, I
sworn, purged and examined ut supra^ by the i
above Mr. Archibald Campbell, sworn inter- j
preter, depones, That, U|>on the afternoon of ,
Saturday the IGth day of May last, as the de- i
ponent was in a fir -bush near Aldavoim, at the
lb«t of the heugh of Corrynakdgh iu Koalis-
Tjial of Jama Stetoart,
[144
nacoan, he heard a whistle ; and apon looking
up, saw Allan Breck Stewart, at a little dis-
tance, beckoning to the dc|KMient to come to*
wards him ; which he did : that aflec saluta-
tions, the deponent told him, he was airaid it
was no good action that occasioned his beiog
in such a remote place, and at such a distance
from any common road : that Allan Breck an-
swered the place was not very far from a com-
mon road : that the deponent, having heard the
day before of Glennre's murder, charged Allan
Breck with being guiUy of it: Uiat Allan Breck
asked the fleponent, what he had heard about
the muider ? That deponent answered, that be
had seen no iierson from the strath of Appin ;
but that two poor women, that had come op
Glcno, were telling that Glenurc was mur-
dered Tiiurstlay evening in the wood of Letter-
more, and that two people were seen going
from the place where he was murdered ; ami
that he. Alia*! Breck, was said to be one of
them : that Allan Breck answered, he bad no
concern in it ; and that, if his information wis
right, there was but one person about the mur-
der ; and that, as he was idle in the country,
he was sure he would be suspected of it ; bst
that that would give him little concern, if he
had not been a deserter, which would bear
harder upon him, in case he was apprehcudeil,
than any thing could be proved agiiinat hini
about the murder : that the deponent did not
believe him, when he said he had no hand in
the murder of Glenure *, and not caring to
press it much upon him, told him, that, as he
was alre:idy suspected, it was dangeroua to
have any intercourse with him, and pressed him
(o leave tlie place, Icbt he shotdd bring the de-
ponent and his family to ti*ouble : that Alba
Breck said, he did not doubt hut the family oi
Ardshiel would be suspected of the muraert
and it was probable the [uinnel, and Allan
Siewart his son, might be taken into custody
about it ; and that he, Allan Bieck, was afraid
Allan Stewart the pannel's son's tongue was
not so good as his father^s ; by which words
the deponent understood, that Allan was easier
entraj-.ped than the panuel ; and the deponent
still mbisting upon Allan Breck*s leaving that
neigh bourh(N>d, the said Allan Breck told biiD,
he would not leave the town for eight days, un-
less some necessaries he expected came to him ;
and told the de|M)neut, unless some money caine
for him before next morning, he, the deponent,
must go to Fort -William with a letter: that
though the deponent refused to go, Allan Brack
looked about among the trees, and finding
a wood- pigeon's quill, made a pen of it, and
having made ink uf some |>owder he took out of
a powder-horn that was in his pocket, he wrote a
letter, which he tcild the deponent he must de-
liver to William Stewart, merchant at Mmry-
burgh ; and, upon the deponent's telling bim
that he would by no means undertake thai,
as he was informed that every body that
went to Fort-William was searched, Allan Breck
said it was an easy matter to hide a letter ;
the deponent answered, If he was catcbcd
14»]
^ Murder.
A. D. 1752.
[U6
IMft iUtt str^H, wltnt would he do witli it F
Awa Drvck tulil Itim tlmi Ibe letU^r must
Dot W fbtjotl Upon him by any means, and,
if lit ttAs culched viiili (lie letter, he must
m k Wfore it WAS foiinil: that the de|Kmenl
lbe« loM tJie saiiI Allnn Breck, that he did
Ml hm9 lint he would be obliged to go tor
Mmcbpfr next ik)r tu Fort >Villiam, in\vhich
CMt Ike ini^ht posMbiy carry ihe letter; but at
l^«lMliiiie tuld the said Allan Brcck, if he
WW eiirWffd hiUi the leMer, be >voutd tell atl
hf kwtw abivut him : ibal the said Allan Breck
liir ifptioritnt 1*1 rrcitci (Ttttbrlor Glcfico's
fit; I to him, which the de-
^ par tin|;;« the fdid Allan
loAii ibc tlfc^jionfui, he would see him next
Hcftooe*!, that, at llie time of the abo?e
'^MUfio, ihtf ftaiil Allan Breck Stewart was
ia n iluii'Colouied i^rcat coat, black
until, ftsid blue trow sera atriiied with white.
t\tm 4tfoneui ha%in|^ seen iu court the
ftliortcoAt with the buttons on the poc-
9m6 iW trowsers, depones, that th«y are
ttod trowfiers he saw the said AU
Bt9«k wtw, Of exactly like ihem. De-
li tkttt c«rly QpOD Sunday mornini^ the
dtjr of Hay last, u the deponent got up
ftlnait luN cornt, he saw a man, which
t to be the said Allan Breck
toward* him up the glen ;
iprr ar, the deponent knew
-ifwarti irHvelting' pack-
won in Api^iu (the immedinte preceding wit-
tiMijt wUo 19 CO U!i in -get man by the father^s
Bl*t4> AlUn Drvck -, und sdWr salutation^ and
ikK4r|Miieiit 'ft expressing hia surprize at see-
Im kim «o early, the stiid Alexander 8tewart
mmti Ibedcpotieul, tl he had ^nn Allan Breck ?
AnltW tl-'" '• refusiag hishavioLr sren him,
Akoa^' . 8e«med surprized, and told
ihM tie '...-.. : nied he wouM ine^t Allan
Iknk Iherr: and that he tiad brought some
9mtmm\t-*> f-r tnirt ; and the deponent inquir-
iif oita oug!»t, the sutff Alemnder
JRwrifi I Inm, that he hud Ifrouirlitfire
foBcoa OAil it(im*i ilniheii ; and lold that he had
• fRMl deml of trouble iu getting the money :
Ikai ba bail b^^n mrnt by the pani»p| to WilliAm
*^ Tchiiiil, at Flirt Williani, Irom
H guincr.9 ; und that the
ive him the other two
BiifiM i -^i ' H t** wife if^^ve him
ittteain, (1 A (hat Atlun Breck
^Hki mrel 1. i^ ^uacoan ; but (hat
■o be f»ouh1 l«^.»fe the mouey and clothes
VMb ll»t* ill :'un< lit : iniifn this the deponent told
(W aaiil , that he had seen
Bt- . and that he e.v-
iii«i*i4*i^ ttini lold him, that he be*
Btr^k Wtt« then in the heugh of
I- < he would go to a hill
*1 oui tu hi III-, Rud whis*
' Brfcck
VOL. XIX
rSlcw
much
I I Alex-
. auld not
gfo Ihat length to see bis uncle^si son ; the said
Alexander Stewart answered, that he Itad slept
none for two nights, and was very much fa-
tigueil ; and upon this he delivered to (he de-
ponent the five guineas, and told he had left iho
clothes at some distance, and would shew them
to the de[Minent when he was going away : that
the deponent told the said Alexandt-r Stewart,
that Allan Breck wanted a peck of men I from
Gleneo or Callart*^ house ; and that he, the
said Alexiinder Stewart, ought to gel ii for him;
but the said Alexander Stewart refuined to go for
it ; that, aHerwards, the said Alexander Stewart
slept in the deponent's house. Depones^ that the
said Alexander Stewart told him, that the pan*
nel, and Allan bit son, were made prisoners ttie
eTening before, and sent to Fort VViiliam ; and,
upon the deponent's inquiring who was sua*
pected of Glenure*s murder? the Said Alexan-
der answered, I bat it was Allan Breck, and that
it was likely Ihat lite panuel, and Allan his Aon,
would stanil the first trial for it. Depones,
that the said Alexander Stewart and the depo-
nent dined together; and as the said Alexander
Stewart was going away, about 12 oVluck, he
pointed out a lir*tree, at (he root of which he
said he had hid Allan Breck^s clothes. De*
pones, that, alter the deponent had gone ta
ned, upon the said Sunday evening, he hetrd
one knocking at the window, and imagined U '
might be Allan Breck ; the deponent got up,
and went out to bis shirt, and saw the said Al-
lan Breck at a little distance from the housa ;
and, upon the deponent's coming up to him,
the said Allan Breck asked him if any message
had come ft^r him ? The deponent told him,
that his uncle's son had come with five guineas
and some clothes : that Allan Breck cumpbio«^ '
ed there wa.s hut little money, but hoped it
would do his business : that the deponent told
the said Allan Brtck, he was afraid he would
starve among the heather; and that he wts
not able lo help him : that Allan Breck an-
swered, he had no occasion for victuals, but
want«^d 8 drink very much : upon w hich the
deponent ueiit back 10 his house, and carried
out some whey, or 6ome milk and water, in a
noggin, and the 6ve guineas, and gave both to
Allan Breck : thai the deponent then went for
(he clothes, w hich ho also gave the said Allan
Breck, which consisted of a blue long coat, red
waistcoat, black breeches, a hat, some stock*
ings and shirts ; that the deponent (old the said
Allan Breck, that the paunel, and bis son AU
Ian, were apprehended upon account of (jIo-
nure's murder ; to which Allan Bi>eck aniwer-
ed,that that was no more than he expected ;
but tt would not signify much, as there could
be no proof against thftin : but expressed aoaic
apprehension, lest Allan Stewart, sod to th«
pannel, might be betrayed by hi* own tongue :
that the deponent desired the said Allan, n<»vr
(hat he haa got all the necessaries he expected,
to go atiout his business; and the «J)id Allan
Breck (iromi^^l to do so ; hut told the depo-
nent, that he must meet him, the said Allan
Breck, ne*l morning; that he mustd^tlircr tht
L
U7] 25 GEORGE 11.
'depoQpnt the clothes he, the said Atlan Breck,
had tlien on, to wit, the hiack short coat aDil
trousers shewn to the deponent in the c1erk*8
hands, in order to be kept by the deponent till
he delivered them to the pannel's wife : Ihat the
deponent promised to meet the said Allan Breck
next mornins;, hut did not see him ; and when
the disponent went out next morningf, lie found
the said short black coat, trowsers, and the nog-
gin in which the deponent carried the drink to
the said Allan Breck, lying together in the
place where the deponent parted with the said
Allan Breck the night belure ; and found in
one of the pockets of the said short coat the
powder-horn now shewn him in the clerk's
hands ; and depones, that he has not seen the
said Allan Breck since. Depones, that, in a
conversation the deponent had with the panne),
as the deponent best remembers, altout two
I'ears ago, mention being made of Glenure's
being about to take the management of the
estate of Ardshiel from the said panuel, and
thereby di8abliu|^ the panuel from beini; of any
service to Ardshiers children, he heard the pan-
nel say, he would be willing to spend a shot
upon Glenure, though he went upon his knees
to his window to fire it. Depones, tliat he
beard a waif report in the country, that Ard"
shiel (attainted) liad sent home a message, that
lie believed all his friends were dead, when
Glenure was allowed to go on at the rate be
did. Depones, that, upon the evening of the
said Saturday the 10th day of May last, Katha-
rine Maccoll, spouse to Hugh Maccoll, in Koa-
lisnacoan, told the deponent, that sh^ had seen
a niiiu in the hcugh of Corrynakeigh that day
at some distance, and was greatly frighted :
that the de)M)UPiit told her, there used to be
' bo|r|es scon in that place, but she must take no
notice of what she jiad seen, for fear of frii;lil-
ing the women of the town, and prevent thrin
from attending their cattle in that part ; and
that the reason of tellini; her so, was for fear it
would be known it was Allan Brpck she saw.
]>epones, that, uhon he found the black short
cout and trowsers ho saw Allan Breck wear,
ujKin Monday morning the Ittth of May last, he
hid them ; and that, after he, the deponent,
had l»oen some time prisoner at Fort William,
liccame along with a party of soldiers, to whom
he shewed the place he hid the said clothes ;
and the said party took the said clothes out of
the place he had hid them in, in the deponent's
presence, and carried them to Fort William.
Causa scinitia patet. And this is truth, as he
ahall answer to God ; and depones he cannot
write. (Signed)
Arch. CAMrucLL. Ja. Ferguson.
Hu^h Macclcntif barber in Mary burgh, aged
S7 years, marrieil, sworn, purged and exa-
mined ut supra^ depones. That being a barber
to his trade, and one day being called by th/;
paunel to the prison to bhav e him, which be
thinks was upon a i!$aturday, the pannel atked
turn, what neus he heard in the town? To
which the deponent answered, that he heard
Trial of James Stewartf
[118
that he, the pannel, was to be carried to Edin-
burgh on the Monday following: whereupon
the pannel said, Tliat that was a matter gave
him ho concern, and wished it hail happened
sooner, and was afVaid of nothing but tnat hia
servants might be enticed to take money, and
turn a^inftt him ; and desire^ the deponent, as
from him, to tell his servants to say nothing but
truth, to keep their minds to themselves, and
he would take care of them ; and accordingly
the deponent delivered the nannel's message,
in his own words, to two of nis servants, wii'o
were then in separate custody in the same pri*
son ; and that they were botli of the name of
Maccoll. Depones, that at this time the pan-
nel gave the deponent a shilling, and said,
when he came again to shave him, he would
give him more ; out that he never got more
from him than the said shilling. Depones, that
from the pannel he went to his son Allan also
to shave him, to whom he told the commission
his father had given to be delivered to the ser-
vants ; and the said Allan gave him ba1f-a«
crown.* Causa scienti^e patet. And this ia
the truth, as he shall answer to God ; and de-
pones he cannot write.
(Signed) J a. Ferguson.
* « With respect to this deposition, it is i»
be noted, that, after it was finished, the pan-
nel du-ected the following question to be put to
the witness by the Lord Examinator, viz. How
long he had shaved the pannel and bit son,
before he received the above named shilling
and half-crown ? and if he had formerly re-
ceived any payment from them ? In answer to
which Macclean deposcil. That he had shaTed
them both for five or six weeks before, nod
never received any money but the said shilling
and half-crown. The Lord Examinator said,
he did not think it was necessary to make this
addition to the deposition ; but would cause it
to be done, in case the pannel's lawyers insisted
to have it done. To w hich one of the pannel'a
lawyers answered, That, seeing the jury had
heard the answer of the \ulntss (still upon
oath) to the intenogatory put for the pannel,
and that titc judge \\'u\ not think it necessary
to be added, iie did nut insist for it. Now, m
the first place, As to the giving of this shilling
and half-ciown to the barber, vas there noC
good r.'.*asuu for it ; as they were then resting
the barber for several weeks shaving ; and that
he depones he had told them on tiie Saturday,
they were to be transported from Fort- William
to Edinburgh on the Monday following? In
the next place, As ti> the commission given to
the barber, (which, by the by, is the only one;
8<» no leabon for saying, as 31 r. Erskine does,
repeated commissions); it consists of three
particulars. Fur the first, To tell his servants
to say nothing hut the truth. Sure no good
man can find fault with this. For the srcond.
To keep their minds to themselves. This is
agreeable to the declaration of the estates of
the kingdom of Scotland, comprehending the
Claiaa of Right, &c. and the grie? auces repre-
jura
TZniriJ Ct*r^i*atil fn trp
ftnd, a/irr o-
frou
ftl Pulteney'i
iivurrkili \rH-
;<-fJ of uinljce
• bceu called
iTiipr flrposi-
^vo
luiiii^ lib ex^iaihuition;
kM InuuWt?, was rc-
■ \ .i:^:m-\ t nji'l liriniT' SO-
.„t-.^tr,ii;.,l.:-, ,|,;|:in,rs, That,
July last, to tlie best of
r.mce, he was sent with
-n"'--"nTtfr wiih hiro,
' BrcL'k Mac-
: .*: uc ten miles
i over Lochleven j
lieir gtiiiJe carried
I of ihe JMi, iiDd
• i]t of adift iu the
t bluck coat with
irtrnin tite pocket,
< them 10 ihe
jied them to
dc]i>o(L(l tuem to colonel
tmtaf
ItWoli
»■' - - --' -■; ■■■, - r'l ♦"- ;• 1{^,-
not
..i.«. .... ,.i^M I'lMiile
1^, ill rcltitiou to other
: «iie tfiui!- Vtnl he wouUl
A. Iu-ri1r.r-
[ wit If iroii
iwr» Oil
ton r»tit#;}ail) tiius
iS, llifUflt taken
Mtoi fnnn '
hwir. iKnt t
nip thnt
n to lalie
when, con-
M been for
''<»n lined
tS i!|fOII
'-lit
mt
III ij 1 1 d
iu' wan!
-j.y of wit-
I'jkW n>;iil to
, and ll.f tuf-
htkf rcalK .,
|fWiWiitArr
ki.-
II (^ and
utvd for
lUty v%trt Im^ servants ;
fnirn iheir actual service,
the pannel's ex-
urujier now, when
' .\ to Ih; traas-
, to let them
.' I -.-.. lo lake care of
Uter nil, if any tliin^j
' in the commis«iion
i er, a» tiicre docs
lit' i;^ Ti ^irn'ile' ^^ li, -
113^ %»i the bt*ivaiits
U, But, for reft'
^re», Uiey did DOt
Crawford. Depones, thnt one of the black '<
coats, with ihe |io«der-horn and trowsers, that
11) e deponent took out of the pocket as ubo^e*
mentioned, are the some thfit his guld^ deli-
▼eretl to him, and which heddivered to colonel
Crawford, as ikbove deponiHl. Caum ifcientim <
ptiUt. And (his is the Iruib, as he shall an*
s wer to G od . ( Siffned)
P. Giurrr* Thomas Baird.
The Prosecutors Proof being concluded, Ihe
PanncI, for his exculpalton, adduced the fol«
lowing Witnesses :
Hugh Steuari, resideuter in Edinburgh,
aged 30 and upwards, married, being sworni
purged and examined ui supra, depones, Thai
he knows Allan Breck Stewart to have several
times gone to France, and returned again to
this country ; particularly tliat he went to
France in 1747, and returned to Scotland in
December 1749; rel^iroeil to France in Ulay
1751, and came back in February 1752 ; auii
when in this country^ he was in use to lodge
at lite deponent's house in Edinburgh : that he
oi)^i ved him to be afraid to be seen abroad,
and kept at home in the day-time, and weul
abroad under the cloud of night; for which he
gave Uiis reason to the deponent, that he had
been a soldier iu colojiel Lee's regiment, from
which be had deserted, and was' afraid to be
dti>covercd. And being tutarrogate, depones^
that, when Allan Breck went abroad, as has
been said, in May 175 U he owed the deponent
a guinea, and, bein*; run short of money, he
drei¥ a bill on the panriel for that sum, whereof I
be acipiuiLiied the paunel some time be thinks
in July i 8h-l : rrac time in August he received*
the money ' 'I, the Appin carrier; and
by the sau* ^ent the paunel tlie bill
upon him. Cix/^.vu icUntU paUt^ And this t«
truth, as he shall answer to God.
(Signed)
J A, FEJtotJiON. Hugh Stewart.
Duncan Stewart of Glenbuckie, aged 27
vrnis. unmairltd, sworn, purged and exa-
\ depoues, That he was ac-
Ulan Breck Stewart ; and tliat,
ai any time, wli^exi he came from France to Ihii
country, he hail no fixed residtrnce to the de^
pouent known, but went about amuniz^ his friendi <
and accjuaintances : that wbeu he cume last to
8i'0tland, lus tlr^^^ was a long ^ ' i retl
waistcoat, Idack bret'ctit^s, and . liat:
that, iu iMarch UbI, when he wus u ieil< depo*
nenl^s hou^je, he war; in that dresH ; but, at
^.ii,... v- 't^^ lie hatf seen him in a ili^erenl
tiiiWIy in Apiil Unit at (>leneuty, .
V .^j the lnj»l time he -= .v Lim. lii< drese
wns a bluek short coat, ^^ m^, a
r<nt III ^rftist('oat, liowsii; , und,
;icat coat. ,
upon on»- I,
whtl< liis bouse, Wmti Uie
first 1 r svo days, to the de-
poncj \ wore a short blue
coat J. 4ch the de|»0Qeiit, al i
151]
25 GEORGE XL
Trial of James Stetoarif
[15«
his c](»ire, lert bim ; and whether he wore it
any more than two days, of the ten days be at
tliat time stayed at the deponeot's house, the de-
poneot docs not know, not having^ been at home
all the time. Causa scientia patet. And this
is truth, as be shall answer to God.
(Signed)
Ja. Ferguson. Dun. Stewart.
Duncan Ferguson, servant to Duncan Stewart
of Glenbuckie, a^ed 29, unmarried, sworn,
purgfed and exammed ut snpra, depones, that,
about the 20th of April last, lie saw Allan
Breck Stewart at the house of Branacbile,
the house of the former witness ; at which
time he was dressed in a short black coat with
clear white buttons, a tartan Test, trowsers,
tartan hose, and bonnet. Depones, that he
stayed there two nights, and went from thence,
as the deponent was informed, to Glen6nlas,
and stayed a night there. Depones, that the
deponent also saw him at Glenbuckie's house
in March last, at which time he was
dressed in a blue coat, red vest, and feathered
hat. Causa scieniuepaiet. And this is truth,
as he shall answer to God; and depones he
cannot write. (Signed)
P. Grant.
Duncan Stewart in Glenfinlas, aged 32
years, married, sworn, pnrged and examined
ut supra, depones, that one night, between the
20th and 23d of April, the deponent saw Allan
Breck Stewart at Glenfinlas, and was dressed
in a black short coat and white clear buttons,
trowsers, and a bonnet, and had ou a dun big
coat above the short coat. Causa scientia
patet. And this is truth, as he shall answer to
God. (Signed)
P. Grant. Duncan Stewart.
Katharine Macinnes, late serirant to Alex-
ander Stewart of Ballachelish, aged 22 years,
■worn, purged and examined ut supra, by i\lr.
Archibald Campbell of Stonefield, sworn inter-
preter, depones, that in the evening of the 14th
of May last, the deponent saw Allan Breck
Stewart at the goat- house in the moor of Balla-
chelish aUer Glenure was killed; and that
Allan Breck then asked her, what was the
occasion of the stir in the town? and that she
told him, Glenure was murdered ; and further
asked her, who might have committed the
murder? and that she told him she did not
know ; and that the said Allan further desired
the deponent to tell Donald Stewart in Balla-
chelish to ^o to the pannel and desire him to
■end the said Allan money ; and that she deli-
vered this message to Donald Stewart that
same nii^ht. Depones, that she told the said
Donald Stewart where she saw Allan Breck ;
but that she did not tell him to go to the said
Allan, nor did he desire her. Causa scientia
patei. And this is truth, as she shall an-
swer to God ; and depones she cannot write.
(Signed)
P. Grant. Aboh. Campbell.
John Stewart younger of Ballacfaelitb, aged
SG, unmarried, sworn, pnrged and examined
ut supra, depones, tliat, the day after the mur-
der of Glenure, the deponent was at the pan-
nePs house, who after 12 o'clock of the day,
told the deponent, that he had had a message
that morning from Allan Breck by Donud
Stewart, to send him money ; but does not re-
member, whether the pannel told him the place
where he was directed to send it; and the pan-
nel told the deponent, that he was resolved to
send him money. Depones, that the last day
of December last, the deponent was in company
with the deceased Glenure, an uncle of AnC*
shiel's, and the pannel, and Mr. Campbdl of
Ballieveolan, when, after the company bad
drunk very hard, and were all drunk, some
high worcis arose between Glenure and Ard-
shiePs uncle, and they were like to come to
blows, which both of them attempted ; hot the
deponent once and again separated them : that
Ardshiel's uncle happenea to go out Of the
house, as did also the pannel, and the depo-
nent called to the people without not to lei
them in again, because tbey were drunk : that
the pannel had invited Glenure next day to his
house, which Glenure had accepted of, and
therefore the pannel pressed to come in again
to the house to renew the invitation, and take
his leave of Glenure; but the deponent wooht
not allow him to come in, and undertook to
make his excuse to Glenure: that the depo-
nent, coming into the house, found Glenure
standing with a drawn hanger in bis hand ; and
the deponent asked what he meant by that?
and Glenure answered. That he should not
allow him to be mobbed there ; upon which
the deponent assured him he should not be
mobbed there; and then Glenure threw the
hanger upon the bed : that the deponent went
home with the pannel, and next day Glenare
came there before dinner, and dined, and iiiade
apologies mutually for what passed the night
before ; and that Mr. Campbell of Ballieveolan
dined there also. And being interrogate for
the pursuers, depones, that the deponent wti
in Edinburgh in August last, and was present
at consultations of the pannel, bis lawyers and
agents touching his defence. Causa scieniis
patet. And this is truth as he shall answer
to God. (Signed)
P. Grant. John Stewart.
Alexander Stewart in Auchindarrocb, aged
about 18, unmarried, witness cited, sworoy
purged and examine<l ut supra, by Mr. Archi-
bald Campbell of Stonefiela, sworn interpreter,
depones, that, to the best of his knowledge, he
saw Donald Stewart in Ballachelish and tho
pannel together, upon the marches between
Aucharn and Auchindarrocb, in the morning
of the 15ih of May ; and that he himself wti
at the time digging ground, with the other
tenants of the town. Causa scientia patet.
And this ii the truth as he shall answer to God.
(Signed)
Arch. Campibu.. Aux. SrribWABT.
P.Gbabt.
A.
iircrioGod*
Sitmari of Batlacbdifih elder,
lltaM CJittl, sworn, purged and examined ut
MM, 6epwi*»9, llial liitf drpotierit wus witb
Ainii Qreck Slevvart^s father a cmiMderable
ttaue litlbrv hi* d^^nth ; fifit, nf^er he huil coii*
trMAcd tfae H T he died, he
mid till* ^»L td to leiive the
csxeef lib ciiiidrei), umj ij bis .ilTmrs, to Ard*
•W iml Uic paotiel : that the dcpouent knuws
lkaj«airdin|;ly took upon them fhe maoag^e-
VAU, tbo«igb he hehere* th<; nomination \vaii
wff f erhfti, «nd not in wriiioi^, Ca asa scicntia
ftUi. AxmI this is the truth, as he shatl an-
(Signed)
Alex, Stewart-
>^nt in Auchnacoan, ig^ed
witness cite«J, sworn,
iipd ut iupra^ depones,
lier^Ai he beliefes, named
tjiyr to hi» children, and
r; mud the cause of the deponent's
he saw the pnnnel lake the
Bl (/ their atfiiirs upon him. Cauta
patri. And thin is ihe truth as be
tftall atfswer to God. (Signed)
I*. O AAftT. John Stewart,
J«Am FtockMmri^ writer in Edlnburc^h, {iged
30 ami ypwanls, tPErried, witness cited, sworn,
EJ an«] eaLSmiiied ut supra^ depones, that
tliown a letkT hy the pauuel to Mr. John
yrloiie, writer in the )iignet, dated the 19th
«C limy h^t, ffepoTtcs, that Ihiit letter came to
Ike flr^fiov I 4 1 Edinhiirgh by course
ef^^OKl tbt ^ . i\ty last, and llie deponent
MB|( lf» Ctv for I'ltHi next da)% he gnve the
iHler to Alexander Hart, clerk to Mr. Macfar-
ham, %» kc «t«literf<d to Iun luMster ; ond kuons
aaC irlwilMr Muy thing \\as> finne by Mr. Mac-
hrtiar^ |i«mttant to that letter. Cttusa icieniia
fdUI. Afld lht» is the truth, as he shull ao-
MtrlaCM. (Signed)
Jo. Flockuart.
Aflil ifl^r closing the oath, heinj^ further in-
tani|fs4r fi»r the pnnueU depones, That there
WM IM^ olticr letter Bccompau^ing the one
Wfaft^OHndkined, And this is also truth, as be
iliU ^mm mr to God . ( Sig u ed)
P. Gkakt. Jo. Fuxkhaut,
Jtkm Ci»mnron of Htronfi ai^eil a 5, married,
vita^sa CiMd, aod sworn ut iupru, depmics,
iWl, aboiM a ye«r ago, beintf in company ivitlt
i^« of ibe tetianl* of Kaunoeh, in a house
ii EUiMKKh, a mait came unto them, whuru
llffcalleil serjrant More Cameron, whom ibe
Aqisucgit o^^er «sn l»»'rr»rr, nor <i>inc*e! that the
iMDta w«re <*in ne for his '
hmi iHi«e of i Uel ; and '
ftttiii ' thtii ir lie met bim ^
btli« i «4|joot bmi. Cama i
SBitfilmr >^^irj. rVuu tiif» IS the truth, ai he I
ilai aavwcr to Go4« (Stoned)
P.Gjukt. Juhm Cameroh.
Cafucrofii aert ant to John Cameron of
BlffMC, ijfvd SU jrtars, unmarried, «rituess
' ifWmwmt purftd and eAuuucd »( lupra^
by Archibald Campbell, writcf iu Inverary^
sivorn interpreter foresaid, depones, that he baU
occasion to be in Usoaoch harvest last : that
he saw there a man that v»as cmIM serjeant
Mure Cameron, whom he never saw before, or
since. Depones, that he saw the man cnlled
Serjeant Mure in a bouse ; but does not know
the name of tbetuwu, or the name of the man
to i%bom the bouse belonge<l, the deponent
having never been in Ranutieh bul that one
time. Depones, that he beard the said 8er»
jeant More say, that, il he, the said serjeant
More, met witti Gleuure» be did not care
Ibou^b he should he up- sides with bim ; but
bad uo reason i'nr saying so, he batingf heard
no more of his rtiscoirrse. Depones^ that Iba
depoueiit wns then seri^stit to the foruier wit^
ness, und was then iu Rarinocb altetuUng bitn
Cuuita $cienita pattt. And this is the truth, r '
be shall answer to Got I ; and deciares be cai
not write. (Signed)
P» Grant. Arcu. Campbeix*
Then ibe Procurators for the Pannei di
dared their Probation to be concludetl.
Follows the WitrriNGs proocfced in Eviocwd
FOR THE PrOSECCTORS.
The Judicial Declarations of the Ponnel^ hii
IFi/f, and Children,
At Fort-William, the 2d day of June 1752
years, in presents of Georjje Douglas, sheriff-
substitute of the sheriffdom of Inverness,
sitting it) judgraeot, compeared James Sttrwart
in Aucharn, now prisoner at ibia place ; who
being judicially examined aneut the matter
underwritten, declares judicially, That Allan
Breck Stewart came to his house in the latter
end of March, upon his coming from France ;
that be stayed two nigbis there, when the de-
clarant went tit Edinburgh, leaving the said
Allan at bis hou!;e: that ibe said Allan came to
the declarant's house iu the mouth of April.
aAer being at Glenbuckie^s and Rannoch ; and
that, upon Mimday Ihe lltb day uf May last,
the said Allan came to the declarant's house
from Fasnacloidi ; and ihe declarant being
called! upon hy Mr. Campbell of Airds to go to
Keil, had little coo» erMatioti with the said
Allan til) bis returu, and no other aller bis re-
turn, than wbat was iu the jiresence of tho
family; Nor does the declaronl remember,
whether be supped with the Bsid Allan that
niifbl or not; but rather thinks he did; or
whether Ihe s^id Allan ^ins dressed in a lon^
blue coat and hat, or in a black short coal with
iiilver Imtlous : Tbat the declarant thought
bimtetf concerned in drink that night, havtog
drunk at the uuller of Keil's bouse with the
old jU|>er, the y«»ouiy r*iper» llie said miller, atid
old Duncan Macrnmbicb, tind his son Archi-
bald: tbe declarant »*^ut away to Appia'f
house early upon Tuesday the 12lh day of
May hiHi, imd did not &t e Allan that day or
since : that when the ilrclarant was at Edin-
burgh, the said Allan carried a short black com!
with sdver buttoQS, belonging to the declarant|
ia-,af?^
153] 25 GEORGE II.
with liim to Glenbuckie's and Ilannoch, and
wore it upon bis retarn ; wlien the declarant
told the said Allan, that be wondered how his
short coat fitted him, as Allan was a larffe man,
and the declarant a little roan ; to which he
answered, that it served him well enough :
that, upon Monday night the 11th day of 31ay
last, the declarant's son Charles told him, he
was to ^0 to Glenco, Callart, and Fort-Wil-
liam ; and that he did not see his said son from
that night, till he saw him in this place, after
that he, the decUrant, was made prisoner ; nor
is the declarant sure if his saiil son went to
Glenco or Callart till Wednesday the IStli day
of May last. Declares also, ihat his son Allan
was at home on Sunday's night the lOlh of
May last ; but is not sure whether he was at
home all that day or not. That there were
no strangers at the declarant's house upon the
said Sunday's night, or on the following Mon-
day or Monday's night, nor yet on the Tues-
day or Tuesday's night following, except the
said Allan Breck and Fasnacloich's daughter
upon the said Monday's night. Declares,
that John Stewart younger of Ballachelish
was at his house upon W^nesday's night, and
is sure that Ewan Roy MaccoU, brother to
Appin's bouman at Koalisnacoan, supped at
bis, the declarant's bouse, either upon the
Wednesday or Thunday's night the ISth or
14th days^of May last; and that the said
Ewan Roy Maccofl was also at the declarant's
bouse upon Saturday thereafter, in the fore-
noon, along with his sister, spouse to Ewan
Maccombicn. padler in Cull, and then paid the
declarant lot. Scots, except seven shillings and
two- pence, for which the said Ewan Macoom-
bich, padler, became debitor; which 10/. Scots
was in pavment of the grass-meal of cattle ;
and that trie said Ewan Roy Maccoll did then
p;ive to the declarant a list of debts due to him
m the country, whereof 20/. Scots was to be
applied towards payment of a debt due by the
said Ewan to his said sister, as the declarant
bad the management of her effects in the
country of Appin ; and which sister's nornc is
Christian Maccoll, and was last winter servitrix
to Mr. Stewart of Ballacliallan : that the de-
clarant delivered some cattle to Duncan Stewart,
servitor to Glcobuokie, and Solomon Maccoll,
servitor to the declarant's son Allan Stewart,
and John Maccoll, now prisoner at Fort-Wil-
liam, at tlie marclies betwixt Aucharn and Sal-
lachan ; and that the said Ewan Roy Maccoll
was to meet them at Glendurqr with* cattle of
bis own that were to be sent south along with
the declarant's ; and that the said John Mac-
coll parted with them at a shealing called the
Immcrin ; and that the declarant did not see
the said Ewan Roy Maccoll since. And being
interrogate, if he nad any arms in his house^?
declares, that when he was made prisoner, he
bad a small fowling-piece and a broad-sword,
which broad sword was to be kept for the chil-
dren of the deceased Allan Stewart of Cuil, till
.they were of age. Declares alio, that the said
Sq&uuui HbccoUi fotaodly aer? ant to DooaM
2V/tf/ tif James Stcwartf
[156
Stewart at I'ayharnan, came home to his ser-
vice on the 15th or 16th days of May last:
that John Stewart in Auchnacoan came to the
declarant's house upon the evening of the 14tb
day of May last, and stayed there that night ;
and deciare<«, that he did not send him any
message, either that day or the preceding day,
nor had he any business that the declarant
knows of. Declares also, that the af\emoon of
Glenure's murder, several of the tenants in the
neighbourhood, particularly the tenants of
Auchindarroch, and Duncan Stewart at In-
shaig, and Robert Stewart the miller, came to
the declarant, to know what they should do, or
whether they should go near the corpse ; and
that he advised them to go ; but that neither be
nor his son Allan went there, because he un-
derstood that Ballieveolan and his sons were lo
be there; and that there were some cliagrine
lietwixt him and them, they having taken the
declarant's possession the year before, wherein
he had a stock of cattle, viz. Glenduror, a part
of the estate of Ardshiel : that when youiup
Ballachelish was over-night at the declarant^
house as aforesaid, they had a conversation
about the removal of the tenants from the
estate of Ardshiel ; the result of which was,
that they should continue their possession, and
take the hazard of the violent profits, unless
they were forced out ; and that he had conver-
sations with old Ballachelish to the saiae
purpose ; and that he g^ve tlie same opiuion to
such of the said tenants as applied to him ;
but recommended to them to use no force in
keeping their possessions ; that the dechirant
had no written, but a verlKil commission Iroqi
the said tenants, to negociate for them at law ;
nor did he receive any money from thf m ; but
that the tenants of Lettermore and Ardshiel and
the miller promised to refund his expences for
representing their case, particularly Dugald
and John Maccombicks in Ardshiel. And
being interrogate, if he had any conversation
with the said Allan Breck concerning Glenoref
the said Allan asked the declarant, if be heard
that Serjeant More was come from France, or
if he was in the couutry of Appin ? To which
the declarant answered, that he did not hear
he was in Appin, but heard he was in Glenlive
last year ; whereupon the said Allan told the
declarant, that serjeant More swore he woold
kill Glenure, because of the treatment he gara
the tenants on the estate of Mamore, |)art of
Lochiel estate. Declares also. That the aaid
Allan Breck threatened, that he would chal-
lenge BalUoveolan and his sons to fight*
whenever he met them, because of his re-
moving the declarant last year from Glendu-
ror, and being about to remove the otlier te-
nants this year from some other parts of the
estate of Ardshiel; and that the declarant
told him then, they would not tight him, as
they would not consider him as their equal ;
and if be bad come to the country to ^ht, ha
had better stayed in Francer And being in-
terrogate, if be had any conversation with Wil-
lium Stewart, msrohiUKt in Uarybargh? de-
At
for Murder.
Ii4«l^ nhoul tlie expediency of the 9B.u\
klU lIiHr ItrrriiinLi' ttnlr i«ns^cssit>nS J and
' pinion, that
us ; and that
'i.entcd to the barons df
. was hard they should
< 4Mil, utitti iheir cane was ststeiL
fi«1^H, if l»i* fiad any convcvsftUoti
' ? declares,
cf»Tiimonly
' cid he-
Muc\ ?
till the
I'tgpi^ajf, 1 ! hefoffe
"■ ' 'lii ,,., . ..1^ i.iie foi^-
r tlie»e N , '..'0 Ion el Huwanl,
^fttrrl. 1 impbell ot" Airds,
bin, esqra,
James Stewart.
George DotCLAs, S. 8.
A. D. lltA
[I5S
^F '
^ being
^B"
reco!-
^MPi
:ib
ijt
^^B^Mjp,
-vKiie-
^^Ki
•tccla-
^^B^l'
». ...^y
^^^Karmi
.:..- "-- ^ ' -■■G
^^^■M>
1 Afrpia proposed
^^^^^^KlbO(3 ' '
r^Tn in Innd : tbtit
^KoTth'
c heard of Glennre's
^^it ir
- mind, Ihnt ^vrjratit
^■■■i
iuae Allan Brct'k totd
^^PFx
r 9Wr»rp hjoody rr Ttitg-e
^Hkuhui^v
foiL !i it catnefrom
^Bv, UfMfi ftccfiutit " H treatment
l^tftd-j'.
' IV kh
J'lWC^
chlel:
3^|llMr«*'T ir.iKi^c vr.t^n|. ir.: AHaU
^■k afunriirds
was, been i>. the
PPinfr ...->'•..,
ritl^n„f •oliii^ ,..;,. uf him.
uhtPSj
1 Allan was puilty
^ it behofeil to b*;
iriu«L
•« acsPMri ni ttte
given to thete-
Mia Lf rhr c>':i'i
1^ and knows no
^V
htj did set out for
^^^^_^'
5d day of April latt»
^^^^^H^
t, the4rh allnoerken-
^^^^^^^K 1
iha 6\U at Ann at, and
^^^^^^^Kv
nd was that nigtii
oil's honwe at St.
^^^^^^^K|'
Ig'ota
^^^^^H^^_
.icrief.
^^^^^^
, ...lied at
^^^K-
jll, flud WAS
^^^^^
,.'. hn.„^,
':Mf?
tie of
^^^^^^^E
ur^^m
uoday Illy 19ti«p VY4& tUut cii^hl
2
at Danivan, called at Wr, Wilaot^s and Mr.
Wordie's and was at Hiirling at nigfht ; which
pfacc hp left on the 21st; called at Mr. Dun-
das of Manner's house, Dunblainnnd Newion»
and was at Annates at night ; tjpon the TId
catne to HallachaUao's, and stayed there that
niirlii; came to GtenbtickteSi the 93d, and
stayed there two nights ; on the 25ih came ta
Tuyindronn ; on the 26th carne lo 0nncan
8te\Tart's house inGlenco ; and iipnn the 27 ih *
came liorae : that, upon the ^5th, he calk'd at
Mr. ftfurmy of Grenkemtrck : Tliat, soun
after the declarant came hofHe, he gntm
notice to the tenants of Ardshif I, that he Jiad
procured a Rjgt for them against the decreet
of removing- ; and that, if they had a mind
ti> continue their posi^essjons, tW}* «vere ad<
viaed to ^o lo Ck^niire and fivei their po«-
aeasians, and if did not grant their flesiie, thejr
should tend for a notary, and go with him to
protect ai^inst G tenure ; and if they fijcns«ii
he wauld send h>r a notary; to which they
»0f€ed ; that accordingly ihe declarani sent
for Charles Stewart, notary, and writ him a
leltpr, sigtiifving ih^y had obtained a mt for
the tenants of the estate of Ardshiel, and de-
Kired him to come to intimate Ihe same to
Glonurc, to the purpose above-mentioned ; aod
that the f^aid Churle§ did accoidingly come to
the derh'-'"''^ house at night, and the tenants
r;«nif rning ; and that the d<?clnrant
UfUi lUi: . , . , -:3L'nre oi'the aaid Charles, that,
if it was not their mind to proceed in that me-
thod, he would not desire tham to do it, beoiiuse
he could not assure them ofsnccesa ; and Ihnt
now they had the advice as it was gifen to
him t sod particnlarly rcnjeoihers, that three of
th I* tenants of Aidshii?! met the notary at the
d**Cl«nint's house, but is not sure if old John *
Coftpihoun. thf foonb tenant in Ardshiel, waa
thcT?, hut rnihcr helievt« he wa«! : that he wia
informed on fVlomlay the 11th day of May liat^
tty his smi ChaKej*, Altan Breck, and Fasna-
cioichN daughter, that they heard G tenure
was to qo to Lochaber that day. Declares,
aJso, that he saw James Htetvuft, younger of
FasuMcloich, at Glenr^V ]^riu^r upon the 5lh
dayof I^Iay last, wh*' ■ "hat he had
done at Ethnburgh T : mt told him,
he bad procured a s\st for the tertanls of Ard-
sfaiel's estate ; and that he did not know what
service it might be ot* but that some people
thought they might fit, and take the hnzard of
the violent profits, till they had nu oppoi-ttuiity
of l.iyinp their case feetbre the hnroni of I'l*
chet[Mer: that at this time the il ' tuhl
tlie said James Steirart, tli.U hr lue
personsof underslnndiuij were pi' -^' "i <.» <h»
term*d»y, lo see it theie u»< law for e)f*c|ifi|{
them; and naked the snid Jjmr'- ii Iw tia* |,|
be iu Durnr about that tuud * , liu
did fjot l.ivAf : that wIh 11 'h* ^' > ■ w
j:t lidi«th wn
h' ,l,iffuM^
tellAUtti, tu
them out ? v,
to liifvrtry. Di^biv* ul^, that i«i giiUdA- ,
159] 25 GEORGE II.
he recommended to every body not to make
anv disturbance, and particularly recommended
to his own servants not to be present, not know-
ing what might happen if a mob of people
gathered ; nor did he intend to be present him-
self. This declaration is emitted judicially,
place and date foresaid, before these witnesses,
colonel Howard, Donald Campbell of Airds,
and Colin Campbell of Carwhin, esqrs.
Witnesses, (Signed)
G. Howard. James Stewart.
Donald Campbell. George Douglas, S. S.
Co. Campbell.
At Mary burgh, the dd day of June 1753
years, in presence of the said sheriflf-substitute,
compeared the said Jamet Stewart^ who, after
having his former declarations fully read, re-
collects, that he was not a night at Annat, but
called there on his way to Edinburgh, and so
was a day sooner there than what's mentioned
in his former declaration. And being interro-
gate, if Allan Brcck, the declarant's son
Cliarles, or Fasuacloich's daughter told him,
when she came to his house upon Monday
the 11th day of May last, that Glenure had
got the said sist removed ? Declares, they did
not; but that one of them told him, he heard
Glenure was to remove the tenants of Ardsbiel,
but which of them said so, be does not remem-
ber. This declaration emitted, place and date
foresaid, before the said Donald Campbell of
Aird^ and Colin Campbell of Carwhin, esqrs.
Witnesses, (Signed)
Donald Campbell. James Stewart.
Co. Campbell. George Douglas, S. S.
At Marybnrgh, the 3d day of June 1759
years, in presence of the said George Douglas,
sheriflf-substitute of the shire of Inverness, com-
peared Allan Stewart son to James Stewart in
Aucharn ; who, being examined judicially, de-
clares, Thati Allan Breck Stewart came to
tlie declarant's father's house on Monday's af-
ternoon, the 1 lib day of May last, dressed in a
long blue coat, red waistcoat, black breeches,
tartan-hose, and a hat ; and after being some
lime there, did put off his blue cttat and waist-
coat, and put on a black short coat with silver
buttons, belonging to the declarant's father ;
and went that afternoon to work with the de-
clarant's father's servants in covering potatoes :
that the said Allan Breck stuid that ni^ht, and
was dressed next morning in his blue coat and
red waistcoat,! as the day before : that the de-
clarant did not see him go away from Aucharn
upon the 12th, the declarant being in the fields
from the time he rose in the morning till twelve
of the clock thpt forenoou, sowing barley, ex-
cept once that he made a start home for more
bear. Declares, That upon the af^rnoon that
the said Allan Breck came to Aucharn, as
aforesaid, he told the declarant, that he heard
in Glencrearen, that the tenants \i ho hatl taken
the lands of Ardshiel were to be at Glenduror
on Thursday's night, in order to enter to the
postesuon on Friday the 15tb day of May last;
Md told him likewise, thai he heard GlcDore
Trial of James Stemartf
[160
had come home, and had orders to remove the
former possessors: that Archibald Cameron,
cousin to Drumnasailly, came along with Fas-
nacloich's daughter, and the declarant's brother
Charles, to his father's bouse, upon the sud
11th day of May last, and staid all night; the
said Allan Breck having come by himself aboot
two of the clock in the afternoon* that day :
that the declarant's father convetaed with tie
said Allan Breck aside, upon his firtt arrml
at Aucharn upon the said 11th day of May;
but that the conversation did not last above
five minutes, or thereabouts ; nor did the d^
clarant hear what passed : that the declarant^
father did not appear to be the least in drink
upon his coming home upon the evening the
Monday aforesaid, but told that Mr. Campbell
of AirJs had given the declarant's father, and ;
the tenants of Keil, three or four bottles ef
whisky ; and that the declarant's father anppsd
at home along with the said Allan Brack
that night : that, upon Tuesday afternoon the
13th of Mav last, the declarant, and the
said Archibald Cameron, and Donald Mae*
donald, brother to Glenco, went to the isle of
Bailieniigowan ; and the declarant, and tbenU
Donald Macdonald, returned in the evening to
Aucharn; but the said Archibald CamerM
went to his aunt's at Cuil : that in the
of the 13th of May last, the declarant wentto
Sallaohan, where he saw John More Madh
chatten, and delivered them a mare and a fiHyt <
and then returned home ; and in the atlenMNa
of that day went to Kintalline, in order to goto *
Tayphinst; but being informed by Doodi
Mackendrick, the old piper at Keil, whoa hi
met there, that young Ballachelish was to b
at Aucharn that night, the declarant rctWMi
with the said piper, and went along whh \m
to the moss: that accordingly BallaebcWi
younger came to, and staid at the declaraat^
father's house that night, and went next dav li
Apnin's house : that the said Ewan Roy Hsc-
coll, brother Co Appin's bouman at Koalisai-
coan, wrought at the declarant's father's peal*
moss upon the said 13tli of May last, and jap-
ped at the declarant's father's house that nim
and believes he took his bed with Duncan Nae"
coll, his uncle's sou, at Auchindarroch tbiK
night : that, upon the 1 1th of May in the
morning, the declarant went up to rreichii^
and returned by the houses of Glenduror, utaa
he saw two women, and spoke with one if
them, to hinder the cattle to trespass on hii ftp
ther's grounds ; and whilst the declarant m
speaking to that woman, he saw a man yawiig ^
at a litUe distance, who was enqainng M ^
Glenure, as the said woman told the declariltl jj
which man the decUirant thereafter obacrrcl j|
travelling on the road towards Auchindarroch: sm
that the declarant came ••«»•»•«* hnm^ Ana P
Glenduror, and continued
to Inshaig, along with his
Fasnacloich's daughter, and continued tbM'J
till the news of Glenure's murder reached Ml ; I
father's house, where he heard the finl M- i
counu of it, Glenure'i eenrant being jiiilgaa% i
ma mwaras Aiicnmaanocni ^
came straight home ftoH *
uinued at home till he wMl $
riih his brother Cbarlee oi ¥
Jot Murder.
cUrant wu iDformed : that the decla-
at home all day the 15th of said May ;
t be made a start to Cuil, where he
onpany with Duocan Stewart senior,
■can Stewart younger, his son, and
Stewart at loshaigf. And bein^ tn-
e, what coDTersation passed betwixt
Ua father, on his return home from
f bis, father told him, That Glen ure's
Ma there; and upon the declarant's
ttkiojif his news, he told him the worst
r be had ; that his master was killed at
Hw ; and that his father asked, if it was
t; ami that the senrani answered, that it
nI that the said servant also desired his
I go and take care of the corpse ; which
Mcd to do, but that his wife would not
I . but that he sent for the tenants of
tafTOcb, anil desired them to ^o to take
be eoqise ; and that the reason that be,
karaat, did not ffo to take care of the
was, because it did not at tirst occur to
nd that it was too late, and the rest of
pJe ffVHie; yet it was clear day light,
lbs ibe aun w as Sf t ; and that the decla-
laiber also hindered his going, and as-
br a reason, that if the friends of the
I were there, and had arms, they
n their passion, do hurl to him and his
Mid that he was but a little time at
fkcr his return from lushaig, when he
anre'a aerrant returning from Glendo-
I paaainflf towards Kintalline : that the
It thiDka his brother Charles went in
mooD of the 14th of May last with Fas-
I'a daughter, and the said Archibald
«« and the declarant's sister, to Lagna-
ere they dined in Alexander Stewart
m hvuae, and afterwards came back to
a, aod then went to Inshaig as aforesaid.
9^ that be heard the said Ewan Roy
1 say, upon the ISth, two several times,
waa bard in Glenure to turn out the
Imaols of the Ardshiel estate, as they
nr rents Hell,and offered an au^menta-
rcol, and nere willing to give obedience
government ; and that one of the times
vr breakfast, when the people were to -
at. the end of the declarant's father's
going to the mc»Ks ; but that his father
t pfesent: that some of the tenants of
glibourhood were there, as well as his
t servants ; aod that they generally talk-
ie same strain niih the said Ewan Mac-
id that the other time tvas after their re-
; from their woik that evening ai thede-
's father's house: thai the declarant
Bt know what been '.e of the said Ewan
lacctdl all Thursiiay said 14th ot May
ml i« positive that he came int(» the barn
the declarant was King, that same night,
twelve of the clock, asking for a bed,
was ret UMfd him ; but ordered to go and
I ihe servants ni anoih*-rharn in Ancliarn,
U Dougal and J<dm Maccolls, now pri-
st Ktirf .William : that the declarant saw
A Kwaa Boy BUecoll at Aucharo, upon
^ XIX.
A. D. 1752.
[162
the 15tb of May in the morning, and saw him
again at Cuil about twelve of the clock that
day ; and that they came together from thence
to Aucham, where they parted, and that the
declarant does not remember if they had any
conversation all that time about Glenure's
murder. This emitted judicially, place and
date foresaid, before these witnesses, Donald
Campbell of Airds, and Colin Campbell of
Carwhin.
W i tnesses (Signed)
Donald Campbeix. Allan Stewart.
Co. Campbell. George Douglas, S. B*
Eodem die^ The said Allan Stewart being >
re-examined judicially, and being interrogate
whom he suspected guilty of Glenure's mur-
der? declares, That he thought, if Allao
Breck did not soon cast up in the country, bt
was the most likely roan to have done it: and
further declares. That, in a converBatk>n be-
tween him and his father, and others, they
were of opinion, that the people o>f Ballache-
lish and Lettermore must have known who
committed the murder at the time it happened :
that, u|ion the Friday after the murder liap-
pened, he beard his father tay, he did not
doubt but he would be taken up upon suspir
cionof the said murder: that when the de-
clarant's father was at Edinburgh, he expected
a letter from him about what he was doing
about the removings; which letter oame to
Aucharn in the declarant's absence, and waa
opened by James Stewart younger of Fasna*
cloich, and contained an account of what the
declarant's father had done about the remov-
ings; and that he was about buying a bar-
gain of meal. Declares also, That he heard
his father express his desire to young Ballache-
lish to be present when the nei"' tenants came
to take possession of the estate of Ardshiel ;
and that Donald Mackintyre in Aucharn told
him, that young Ballachelish had come back
from ^ppin to Keil, in order to attend ; but,
upon hearing of Glenure's murder, returned to
Appin : that the declarant's father told him ho
would not be present at the entering of the said
new tenants; nor was the declarant resolveit
to be present himself; nor did his hither de-
sire him to go, or suspect him such a fool as to
go : that he knows that the said Allan Breck
Stewart lay with the declarant's brother
Charles in a bam in Aucharn, upon I^Jon«
day's night the 11th day of May last: that the
declarant has a bluck short coat, with nine
round silver buttons on the bren^t, two upon
e»ch haunch, whereof one is shihII, and it has
no buttons on the slcevfs or ptickets; and that
his father has also a black short coat, with
silver buttons on the breast and pockets, and
has none upon the haunches or sleeves, to the
fieclarant's remembrance: that the said Allan
Breck bad no big coat on upon ihe lltli day of
M.ty last, when he came to Aucharn, nor nad
he any big coat of his own that the declarant
knows of ; for the said Allan borrowed the de-
clarant's big coat, when he came to Rannochs
M
159] 95 GEO!
be recainmendeil lo t
to nis own h,'
iiig wlint tn ,
g^albered ; nor <i»
telf. This* ilecli
place ant! dale 1'"
colonel f{f>war*L
and CoHu Camiibdl yt Lur'* tin •-»
Witnesses « {ik/m^^
G. Howard. ^
PoNALD Campbell, '
Co. Cami'Dell.
At Marvburgli. llie f^
y earti i n (» reseii ce of t i "
compearid the smd Jf^ -^^ ^*
having his fbtraer ilt-cinrs*'
coSlccls, that lie was not o i
culled there on his way t«»
was a d^y Booner there Uiim'
ia liif; tormer declaration,
gttici if AUin Breck, n
Churles^ or FasDacldchV •! y
whtu she came to liis Uoum
the lUh day of May Uai, ihn<
got the said sist removed ?
not J but that one of them
Gienore was to remove llu
but which ofthera said ^o, i
ber ♦ T h is d eel aration c in i I
foresaid, before the eaid I
Airds. and Colin Campbell
(VttnesseB,
Do.HALD Campbell. JAJHL^ .^ 1 1.^- ».
• Co, Campbell. Geouge Dot* i
At Ularyhiirgh, the 3d day of J
^earSf in presence of the aaid Geor^r i
' ' eriflf-sybttilule of the shire uf 1 *
M,red Alltin Slewart son loji
Aucharn ; who, being examine i
cl art's, Thau Allan Breck t^i*
' the declaraiH^s falltcr^s hoU!ie i>^:
ernotio, the I Jlh day of May 1;
rioog blue roatj reil waistioiit, L— ^
Jtortan-bose, and a hat ; and after » •
tioie there, did put off his blue cn«i
coat, and put on a black shurt coat ^^
buttons, belonging to the declarant
band weut that afiernooo to work n i'
IpClarant'fi father** servants incovcrmu
[that the said Allan Breck Maid that i:
[was dressed next morning in his bhj
[red waistcoat,' as the day betbre: li^
' clarant did not see him go awajj fruv..
Llipou the 12lh, the declarant being ii
from the lime lie rose in the morning
€if the clock Ihut forenoon, stminsf ii^l'
4:ept once that he made a start home for i
i J»ear. Declares, Thai upon the aftrnuirr
Ihe said Allaii Breek came to Au
sibreiiaid, be told the dcclamnt, thai
in GlencrearetK that the lenouls whohaii :
the lands of Ardsliiel were to be at Gletu
on Thursday's night, in order to enter t
possession on Friday the 15th dayof Muv
and told him likewisei that he beard GIluui
rSrrtMff,
[1G4
Mi brnthcT Allan to come home ;
ks tsil brother ^uh gotie n little before
00-^^ SJm Uacctoll came, liechrea alio,
^ 1^ mm Swan Uoy MacooU, Ivratbar to
ta«^ fci«in at KoAlianacoan, at the deck-
^b'^ Mber*i houje, upon the evening of the
1^1^ 4kf «f May last before i(»ey lighted caiu
lyi ^b) lild ke had come from Gleneo ilm I
^^ ^ ^ril Im afterwards, that nighty came tata j
j^ ^0« vliere the declarant was lying if rth i
^w^^ Mm Ktewari, looking for a bed, nsii
to he with the servants in the otlicrl
Aucharn. Declares, that upon h\a^
tntihaig with ttie said Jolm M%C'
fggL lyiaener, that the declarant a«iked him
^\jft Gienore was murdered, what way it wif ;
.1..** tad if any per^ioo was htm by the place ? 1
If said Jtdin aosweredv That it whJ
»' wood of Leitermorc ; whether rt'
or north of thr hous^eii, be could
^Lit U xrf*^ by a Khot^ and that tiu're
sten near the place ; aod .
it remeudjers of the coo- 1
' : and that u^ioti his 1
' i'l fattier d'^^ire ttie I
.11 lo go aud t^ikecareofj
his fatlier proposed to go J
, ,. wife would not let btoi ;
ic time, heard his father «j
e suspected of tlic murder, as
o [nucti part with the tenanU
L' the factor: that \w heard
I AUccoll say, Ujion the 13lh day of
thu^ he wondered that Glcnure wu
:Tant8 that paid their retU wetlij
^ tf> quality to the gorrrnm^nt!
' r and the ^
I cooversiJi
I (lis ilecbralion •
and date forf**iiid. In
Id Camjibell of Airds, anu V.U114J
II whin, ee^rs.
(S 'r^
r.LL, Cl WART.
,4.. 1.. GEu ^ -^OLAS, 8,
>:u,r,ift, son to the said Ja
I, being solemnly swo
nie&, That, upon Toosdajj
current, the deponent aoi
■ ;. Stewart went from th
i\> liouse, %vhere the said Alla^
tj from the Ut current (exccpj
v«turday*a night at Cuil), an
ui'« house on l^ue^day's nt^lin
ui^lu at AnchnacK]
d Aucljaourim*s, Fd
V *s night at Fasnaclo'
ly the llth currents
I *ili»> dresK the said [
a long-bodiedi
breaches, a hat I
r, and tartan hose, with a It^
n=d : in which very dress, an
along with the
u\mn the llth
iUtd ihero Umt night, and
Jot Murder,
nnd he l«y logeUier : that he rose
deponent on TuesJay ilje 12Ui cur-
lijal the deponent vraa tip be lore be
' m-s ; and tttat as lie was going
'Wftn about 8 or 9 of the clock to
waB told by liim lie was gfoin^
it tben he had od tbe whole of
dress as above described : that the
accompanied him to Kintalline, and
vd Vfiih bim any where on the road :
|Mi*iS€d tbrongh Auchiodarroch and
^ And spuke with soirte people as they
Dg, particularly Alexander Stewart
htk^ and Alexander Stewart his son :
tue coal Allan wore bad yellow metal
that the deponent and be parted ut
», after the deponent asked John
iccombie for ale there. Aad this is
le shall answer to Gml.
(Signed)
D^ursELL, S. D. GHAictJ^ Stewart*
et Sictcartt spotise to James Stewart
rtt< being solemnly sworn and exa*
■■tefl, That Allun Breck Stewart
^^^Onse upon Mottday immediately
l5orc*8 murder, dressed as mentioned
deposition, and with a bij^ coat of tbe
3r ; that he stayed all night, and went
t day about 8 or 9 of the dock in the
dr^Bcd in the same habit ; and at
' teaye of the deponent, asked her, if
"iny commands lor f tannoch ? Tbut,
ot her knowledge, he came by him-
rent away by bimsalf. And Vhis is
(ms she shall answer to God ; and de-
tduiKit wrile. (Signed)
Arch. CampbeiXi S, D.
'J t^£f t«rf, daughter of tbe said
wan in Aucharn, being- solemnly
examined, depones, contbrni to
'T*% deposition in every ibingf, only
positive tbut Allan Breck Stewart
one tf^ Aucharn, ujkiu Monday im-
before Glenure's murder, she having
come I here. And this is truth, aK
answrr to God ; and declares she
ilds« that Solomon IVIaccidI,
..\ went u/f for tbe south
on SiJatuiday the 16tb current ,
€d) Arch, Cami^cell, S. D.
5ffii(ir/, son of the said James
^ttcb^irn^ iK-intf re-examined, judi-
S That Dusrald Wacroll,
Id tbe said Charles Siewarl,
were arms in his father^s bousi',
id bid; and this judicial arknow*
ntii this ?3d day of May, 1752
' ese wi messes, Donald Catn^)-
nd James Campbell, writer lo
Titer hefcof.
A, D. 1752.
[106
(Signed)
lARLLS HtE
^CaWpbell. Cdarlls Stewart,
pf Ibe said Ckurla Stewart jitdi*
flliat, upoQ the Utb day of
' Mny current, tbe block short coat with silver
buttons, tben wore by Allan Breck Stewart, ^
was i^iven lo bim by the declarant's liillier;
and that h<» had i^ot the pJaidt-u irowsers, tliea
wore by bim> from the dedamni's father, or
brother Alkin ; and tins is also signed, place
and dale aforesaid.
Witnesses (Signed)
Donald Campbell, Ciiahlks Stewart,
J A. Campbell, Arcm. Campbell, S. D.
The said Margaret Stewart^ spouse to the
saiil James Stewart in Aucharn, being" rc-exa-
mined, judicially declares, That her husband
James Stewart was at home, and lay in rhc .
same bed with her, on Monday's night ibe Ulli
of May current. And this is also truth, as
she simll answer to Gud ; and declares she
cannot write. (Signed)
Ancir, Campbell, S. D.
The said Elizabeth Stetrart, her daughter,
re-examined, judicially owns. That her father
was at home on Monday's nipht the IJlh day
of May current And this is also truth, as
she fihall answer lo Goil ; and declares she
ca n n ot wri te . (Sig n ed)
Arch. Campbell, S. D.
At Taynaheiniai^, the 25th day of May,
1752 yeais, tbe said ChurUs Stewart, beinif
re-examined by the said sheriff- depute, [udi-
cially declares,'ThBl the said Allan Breck Stew-
art bad on a binck short coat with round silver
luMlons, upon the oOlh day of April fast, when .
he came to the declarant's tUtber's house in ■
Anchain from flannod» : that thi; declarant
left the said Allan Dreck at tiis father's Uq»w,
be himself havinir, npon the 1st day of May ']
current^ pane to Glenure alon^ with the te-
nants of Ardsbief and Charles Slewarr, notary,
to t)e a witness to tbe intimation of the sist
Ihey had obtained against the decreet of re-
moving ; and that upon his return thateveuint^,
he fuuad tbe snid Allan Breck at bis lather's^
and was then dressed in a Mack short coat and
round silrcr buttons; ami then ohsi^rveil, that
tbe said coat was lined with red in ibc breast and
Fkirts; and that the said Allan told bim, tl^it
be had c^ot tbe said short coat from the
declarant's father^ but docs not remember
when it was be loM him so. DeclarcB also,
that tbe said x4llaii fbeck Stewart had on hhii: -
and while ti-owsers, wi»en he t-ame from
Itann'ich to bis fufher*a houi^t*, on the 30ih
day of Apnl ; and hud tbem liltmusc on, on
(he '^d day of May current, tihcn be went
(0 Cuil in Appin; and tbtii he wore tbe $ame
dress upon the 3d nud 4th days of May cur*
rent: that the iMiid Allrin did put on his siile
blue coat on tlie 5ih tiay oi May current, when
he went to Appiu^s houstf : and likewise dc*
dares, that he saw Allan Breck*i* blue coat,
upon the 13th current, lyin^j;^ upon a trunk in
the room upon the rtgUi hand of the entry of
biii lalherV house; that the ntmi Allan had on
the saidblack &huit coat« when st breakfast at
the deciaratit'6 faiba'a house, u[iod tlie isilli
lOS] 25 GEORGE U.
thfit, in a conversation the declarant had with
old Buil-'chelish on the Sunday before Gle-
mire's murder, Ballachelish then told the de-
clarant, that the man that had taken the terry
of north Ballachelish, came there with his boat,
and was refused to enter to the possession by
the tenants, who thought they had as good a
right to the ferry as to the land : that there-
upon the ferry -man drew his boat, and went to
Glenure, the tenants being resolved to keep
their possessions for the year ; and that Bal-
lachelish said, that the tenants of the Ardshiel
estate had as good a title to sit, as the tenants
of Ballachelish, if the suspension was not dis-
cussed ; and that it was a cant word throogh
the country. That the tenants might sit, since
the worst of it would be pay in? the violent pro-
fits. Declares also. That he has a gun and
broad-sword : that he lefltheguu in his father's
brew- house, and the sword he gave to John
Maccbll, his father's servant, that is prisoner at
Fort-William : that John lloy Stewart, nephew
to Fasnacloich, lay in the barn with the decla-
rant upon Thursday's night the 14th day of
May last ; and that John Stewart in Auchna-
coau lay in the same barn with the declarants
brother Charles, being the night that the said
-Kwan Koy Maccoll came to look for a bed
there. This judicial ileclaration emitted in
presence of the said aheritPsubslitute, place
and date f(»resaid, before these witnesses, the
right honourable the lord Bury, colonels
Howard and Crawfurd, Donald Campbell of
Airds, and Colin Campbell of Carwhin.
Witnesses, (Signed)
Donald Campbell. Allan Stewart.
Co. Campbell. George Douclas, S. S.
At Mary burgh, the 4th day of June, 1752
years, in presence of the said George Dou;r|as,
sheritr-suMtitute aforesaid, compeared Charles
Stewart^ Hon to James Stewart in Aucharn ;
who being examined judicially, declares. That
be was at home all day of the 14th day of May
last, and that he dined with his father, mother,
brother, sister, and Fasnacloich's daughter;
and after dinner went to Auchindarrocb, and
there conversed with Duncan Maccorahie,
Duncan and John Maccolls, and others that
irere covering potatoes, and desired Solomon
Maccoll to gu with Fasnacloich's daughter to
Ardnamurchau, but be would not go: that
Fasnacloich's daughter and the declarant's
sister went along with him to Auchindarroch,
and returned before him to Aurharn, the de-
clarant having stnid ar quarter of an hour after
them, to pL'Psuade the said Solomon to go to
Ardnamnrchnii, and then followed them di-
rectly to Aucharn ; and did not go nearer Let-
termore that day, than the place where the
people of Auchrndarroch, were coreriog pota-
toes ; and, in an hour thereafter, went with Fas-
nacloich's daughter, and the declarant's brother
Allan, and sister, to JuKhaig, where he re-
ceived the newt of Glenure's murder from
John Maccoll, now prisoner at Fort-William ;
Mag tent there, by the declarant*! ftthcr, to
Trial of James Stewart ^
[164
desire him anil his brother Allan to come home ;
but that his said brother wos gone a little before
the said Juhn Maccoll came. Declares also,
that he saw Ewan Uoy Maccoll, brother to
Appin's bouman at Koalisnacoan, at the decla-
rant's father's house, upon the evening of the
14th day of May last before they lighted can-
dles, and told he had come from Glenco that
day ; that he afterwards, that night, came into
the barn where the declarant was lying with
his uncle John Stewart, looking for a bM, and
was directed to lie with the servants in the other
barn in Aucharn. Declares, that upon hia
return from Inshaig with the said John Mac-
coll, prisoner, that the declarant asked him
where Glenure was murdered, what way it war
done, and if any person was seen by the place?
and that the said John answered;* That it was
done in the wood of Lettermore ; whether it
was south or north of the houses, he could
not tell ; that it was by a shot, and that there
was a man or two seen near the place ; and
this is all the declarant remembers of the con-
versation upon that head ; and that upon hit
coming home, he heard his father desire the
people of Auchindarroch to go and take care of
the corpse ; and that his father proposed to go
himself, but that his wife would not let him ;
and, at the same time, heard his father tay
that he would he suspected of the murder, as
he was taking so much part with the tenants
against Glenure the factor: that be heard
Kwan Uoy Alaccoll say, u|K)n the 13th day of
Mny last, that he wondered that Glenure was
removing the tenants that paid their rent well,
and were willing to qualify to the government:
that he observed his father and the said £wao
Roy Macctdl liave several conversations aside
about that lime. This declaration emitted ju-
dicially, p!ace and date foresaid, before these
witnesses, Donald Campbell of Airds, andColio
Campbell of Carwhin, esqrs.
Witnesses, (Signed)
DoKAi.D ('ampisell. Charles Stewart.
Co. Campbell. George Douglas, S. S.
ChatLs Stewart, son to the said James
Stewart in Aucharn, being solemnly sworn
and examined, depones. That, upon Tacsday
the .0th day of May current, the deponent and
the suid Alhui Breck Stewart went from the
deponent's father's house, where the said Allan
had been on ntid from the Ut current (except
that he was Saturday's night at Cuil), and
stayed at Appiirs house on Tuesdav's night,
were Wednesday's night at Auchnacoan's,
Thursday's niglit at Auchaouran's, FridaVy
Saturday, and Simday's night at Fasnacloich's,
and came on Monday the 11th current to bis
father's house : that the dress the said Allan
wore all this while, was a long-bodied blue
coat, red waistcoat, black breeches, a hat with
a black feather, and tartan hose, with a biff
coat dun-coloured ; in which very dress, ana
with which big coat, he came along with the
deponent to his fiither's house upon the 11th
're that night, ud tiM
current, continned there
165]
Jot Murder.
4epoD€Ot and he Uy tO(;etber : that he rose
bdbre ibe deponeot ou Tuesday the 12th cnr-
Rot, but that the deponent was up before he
left bii father'* ; and that as he was going
away, which wan about 8 or 9 of the clock in
the vaoniugf was told by him he was going
for Glcneo : that then be had on the whole of
the same dress as abore described : that the
depsaeol accompanied him to Kintatline, and
M sot part with him any where on the road :
ibal tbey paused through Aochindarroch and
Lijpnba, and spoke with some people as they
vest akmg, particularly Alexander Stewart
B fff?;p^f**j and Alexander Stewart his son :
tkat the blue coat Allan wore had yellow metal
knttons: that the deponent and he parted at
Kiutalliue, after the deponent asked John
Breck Haccombie for ale there. And this is
trslh, as he shall answer to God.
(Signed)
Aacs. Campbell, S. D. Charles Stewart.
MtLTgarel Stevare, spouse to James Stewart
is Aucbam, being solemnly sworn and exa-
' id, depones. That Allan Breck Stewart
i to her house upon Monday immediately
i Glenore's murder, dressed as mentioned
is the last deposition, and with a big coat of the
sme colocir ; that he stayed all night, and went
away next dby about 8 or 9 of the clock in the
fcreaooDy dressed in the same habit ; and at
bb taking' leaye of the deponent, asked her, if
ibe had any commands for Rannoch ? That,
16 the best of her knowledge, he came by him-
scV, and went away by himself. And this is
Ibe truth, as she shall answer to God ; and de-
dvcsshe cannot write. (Signed)
Arch. Campbell, S. D.
EUzabeik Sieaart^ daughter of the said
iiaes Stewart in Aucharn, being solemnly
■swa aad examined, depones, conform to
bcr BMlber's deposition in every thing, only
Ikil the is positive that Allan Breck Stewart
cine sll alone to Aucharn, u|>on Monday im-
■edincly before Glenure's murder, she having
•Ro bim come there. And this is truth, as
■be shall answer to God ; and declares she
CHSot write ; and adds, that Solomon Macc^iil,
in father's servant, went off for the south
(MMry upon Saturday the 16th current.
(Signed) Arch. Campbell, S. D.
Ckarlet Stewart, son of the said James
^mrt in Aucharn, being re-examined, judi-
cid^ acknowledges, That Dugald MaccoU,
Un declarant, told the said Charles Stewart,
ikM there were arms in his father's house,
*bich he had hid ; and this judicial acknow-
Ulgment is signed this 23d day of May, 1752
^1, before these witnesses, Donald Camp-
af Airds, and James Campbell, writer m
bvtrary, writer hereof.
Witnesses (Signed)
Donalo Campbell. Charles Stewart.
Ja. Campbell.
Thereafter the said ClutrUi Stewart judi-
Mf o«Bi| That, upoo tha lUth day of
A. D. 1752. [166
May current, the black short coat with silver
buttons, then wore by Allan Breck Stewart, .
was given to him by the declarant's father;
and that he had c^ot tiic pkiiJ'jn trowsers, then
wore by him, from the declarant's father, or
brother Allan ; and this is also signed, place
and date aforesaid.
Witnesses (Signed)'
Donald Campbell. Charles Stewart.
Ja. Campbell. Arch. Campbell, S. D.
The said Margaret Stewart, spouse to the
said James Stewart in Aucharn, being re-exa-
mined, judicially declares, That her husband
James Stewart was at home, and lay in the
same bed with her, on Monday's night the 11th
of May current. And this is also truth, as
she shall answer to God ; and declares she
cannot write. (Signed)
Arch. Campbell, S. D.
The said Elizabeth Stewart, her daughter,
re-examined, judicially own«, That her fathet
was at home on Monday's night the 11th day
of May current And this is also truth, as
she shall answer to God ; and declares she
cannot write. (Signed)
Arch. Campbell, S. D.
At Taynaheinsaig, the 25th day of May,
1752 years, the said Charles Stewart, being
re- examined by the said sheriff- depute, judi-
cially declares. That the said Allan Breck Stew-
art had on a black short coat with round silver
buttons, upon the 30th day of April last, when
he came to the declaraiu's father's house in
Aucharn from Uannocli : that the declarant
lef^ the said Allan Breck at his father's house,
he himself having, upon the 1st day of May
current, gone to Glennrc along with the te-
nants of Ardshiel and Charles Stewart, notary,
to be a witness to the intimation of the sist
they had obtained against the decreet of re-
moving ; and that upon his return that evening,
he found the said Allan Breck at his father's,
and was then dressed in a black short coat and
round silver buttons ; and then observed, that
the said coat was lined with red in the breast and
skirts ; and that the snid Allan told him, that
he had got the said short coat from the
declarant's father; but docs not remember
when it was he told him so. Declares also,
that the said Allan Breck Stewart had on blue
and white trowsers, when he came from
Kannoch to his father's house, on the 30th
day of April ; and had them likewise on, on
the 2d day of May current, when he went
to Cuil in Appin; and that be wore the same
dress upon the 3d nnd 4th days of May cur-
rent : that the said Allan did put on his side
blue coat on the 5lh day uf May current, when
he went to Appin's house : and Iikt>wise de-
clares, that he saw Allan Brock's blue coat,
upon the 13th current, lyinj; upon a trunk in
the room upon the right hand of the entry of
his father's house: that the said Allan had on
the said black short coat, when at breakfast at
the declarant'ft father's house, u^wn the IStli
167] 25 GEORGE U.
d:iy of May current, but had on no jockey-
coat then. This declaration is judicially
si!;ned, place and date foresaid, before these
wiiiipsses, Donald Cain|ibc'll of Airds, and
Colin C»in|)b<ill of Car«%hin.
W iini'sisps (Signed)
Donald Campbell. Charles 8tewart.
CoLLN Campbell. Abcu. Campbell, 8. D.
The said Margaret Stewart, spouse to the
faid James Stewart in Aucharn, bein^ re-
exaniiiied^ declares, That the black short coat
now aheivn to her, is the same which was
broiif(bt from her house upon Saturday's even-
in(f the 23d current, and belongs to Allan
8tewarl, her son: that her husband has had no
black coat lor three quarters of a year past ;
and that the last black short coat be had, was
given by him to John More Maccoll ; and that
ihc round siker buttons, which are upon the'
coat now produced, were formerly -unon the
coat gi?eu to the said John More Maccoll.
This judicial declaration is emitted this 25th
day of Maj', 1752 years, before these wit-
nesses, Coliu Campbell of Carwhin, and Do-
nald Campbell of Airds; and the declarant de-
clans she cannot write.
Witnesses (Signed)
Collm Campbell. Arch. Cami^ell, S.D.
DOxNALD Campbell. .
The said Margaret Stewart also owns. That
there was a ffun in her husband's house this
spring*, which she saw her Kon Allan go out with
once or twice to kill blackcocks. This judi-
cial declaration is also signed, place and date
aforesaid, and before the witnesses above named
and designed.
Witness (Signed)
Donald Cam pbell. Arch . Campbell, S. D.
Letter addreued to Duncan Stewart of Glen-
buckie.
'* Now I am sorry to acquaint you, affairs is
going quite wrong u{)on this estate of your
cousin's: Glenure wants Ardshiel and Letter-
more in his own hands, and more rent for
our tenement, and the carriages to himself.
Mow far these things will take place, God
knows! the man that makes the u hole noise,
18 Rallieveolan, upon account of our keeping
John More ; for he does not deny but what he
oflft^rs more rents for Glenduror, and gives this
as his reasons. Hovrevrr, it shall be a dear
glen to them or they shall have it. All you
eard about the country is true : 1 go, in a few
days, to K.ngailoch for the stallion, which
«t:;Dds us eight guineas ; he wants to harrow
him this spring, and to get him broke for the
saddle ag:un harvest. Fasnacloich has made
the purchase for himself. You'll not neglect to
seud ail the money you can in a very short
time, as money never was scarcer in this coun-
try. Riugailoch has got money ; to that we
are sure of his cows. Malcolm Livingston hat
rent for more money ; for be employed what
he got. I shall refer the whole history of th«
coantry till I -have the plewure i»f aeeuig joo.
Trial qfJame$ Stemartf
[168
I begyouMI not neglect ■ending a wrvaot toon,
with as much as possible; let nothing stop
him. Neglect not about your brother. No
more, but my compliments to Mist Jeany^
Sandy, and little Dvinald, is all from, dear
cousin, 1 am year affectionate cousin,
(Signed) " Allan StEWABT."
<< Dated Aucharn, April the let, 1751."
Maryhurgh^ 4th June, 1758 years. This .
letter was tuund among James Stewart io
Aucharn 's papers, and shewn this day to Allan
Stewart his son, who refuses it to be his hand-
writing, in presence of Colin Campbell of
Carwhin, and Donald Campbell of Ainb, esqrs*
two of his majesty's justices of peace for Ar-
gyllshire.
Witnesses (Signed)
Donald Campbell, Arch . Campbell, S. D«
Co. Campbell.
The above letter was addressed on the back«
" To Duncan Stewart of Glenbuckiey at Brcn-
chyle."
Jame» Stewart to Charlet Stewart^ Notary,
** Dear Charles ; Not knowing of yoor re*
torn from Mudart, sent for your father Toes-
day's afternoon ; but the rascal I seat» weol
not by Gleocrearan that night, by which 1»
uiissed the old man, who went a-fishiog, at
you'll see by the inclosed, early that morning;
which I reckon a very great misfortune. The
next best 1 can think of is, that yon be btra
without fail this night, if you should hire a
horse, as every thing must go wrong without
a person can act, and that 1 can trust. Tliis m
such a tie upon all the memberij of our family,
that I'll press you no further, but do depend oo
seeing you once this night ; and am your own,
&c. dear cousin, — (Signed) James Stewabt."
** Aucharn f May 14th, eight o'clock morn-
ing, 1753."
'* P. S. As I have not time to write to Wil-
liam, let him send down immediately 8/. ster-
ling, to pay four milk cows 1 bought for hit
wife at Ardshiel."
Addressed on the back thus: « To Mr.
Charles Stewart at Auchiutour. Per express."
Wtlliam Stewart to James Stewart.
*• Maryburgh, Maif 14, 1759.
'* Dear Sir ; I send the bearer Vor the best
mare, atil my young lieasls in Salachan;
unless you keep by it (i%hich 1 think yoa
outfhi), and send some other btui}' np with him,
and let them carry the milk (jows you l>ought
for me. Let the filly be grazed Iherfabontf,
waiting market. — 1 find Glenure has a mind to
eject the tenants ; but they oughi tu be deaf to
it, and, at all risques, keep |M»Bsession, as thej
are in good hands, as it must end in exchequer;
so that 1 beg they keep possession ; as there
will be no tnM>|)s, they ought to repel force bj
force, and take their hazard of the consequence;
as it eao be no more than violent profits, which
is oftM OMdifiod in inftrior courts, beaidctth*
109]
^r Murder,
A. D. 17««;
[iro
ocbimr, who will infiiM for no BMch ; limr
dnef ml)rii brrn^ to Imre a Mett ot ]ieftC(r!il»)e
toniotry, a»^ a viell iittid rent ; so ihut the
people f>4 >>/!>» I'i K<? a'^vureil tbey i^hall b« su|]-
]ir«rted a^ « wdi, which imi iJmiNt mti:»t
lilirillitt' II ta%«)ur<); and atn, <ie»r ^ir,
yiarcMrn, ^c,<^(^f««(/^ William Htewast/^
>il on the back thus : '' To I^Jr. Jumes
tin Aucharn.*'
Wrut€ on the back thus :
•• Marykvrgh, the 5lh day of June, 1759.—
Tte m ibe LfUer reUtife to the tleclaraiion
esiCtod Ibi^ Jay bctWe me^ by William
Jlnr&K« merchant in lllar>bnr}jrh.
(St^nifd) ** GcoHOE DoccLAs^ S. S."
Jama Sttwart to John Mucfttrlane.
> Sir ; JhsI now hud )<our faTour, and am
llicse fiiior tenants shouhl have made use
I ffir re|ireaenting iUvit grievance, a^ in
ill appearance, it hai bmirgHt a frr^at iWni of
teooMf npnn mc; being carried here, and my
ift' <Uy last Mis|>ecicd in be kno^ioif
h. un murder uf Glenitre, who Mas
ibot ile^i unon ThursfUy the i4tU current, m
Itond within two niilcii of my house, jt ie
Mt jirel^oded that I or my son were actor» in
Ml lUNTid action, as HC both can he itell at-
iiled; but atteKes, it was a {irempflilated thioLS
llvhich I must have been Uiio^in^ : liut so
ftrMliCT^i»e»tbat no man (i tliaok tti>d) uhhor^
ttfidmor^. and would, if at liht-rly, dti «H
kmy power to briflt,' it to hifht, Therf t» ouc
AHliiSlewiirt, tt difitant friend of the late Atd-
1^% who ti in the French service, and cume
mrio Marclk la&t, as be said to come, in order
kwttU* at home ; lo olbera, that he was to go
Mn haek ; and was, as 1 hear, ilie day the
imier wa4 commit led, seen nnl fur from tlie
fill* where it htippened^ iin'l h now not to
Wifrn I by which it in beliere<l be was the
^lir; be is U ile^p^'iate foolish fellow ; mtd^ if
Wtoifnilty, came to the cotinrry for lliat fery
iBfiaie. He in a tall pock pitted lad« very
Nik batr, and wore a blue coal and metal
btUMtt, an otd red reHt^ and breecUeA of lite
Cidtiur. 1 would own my«<elf under many
loot to any friend would diHCorer him ;
ir^'n** «ouib| ill order lo em-
jiortunily of tfoini; Hbrtiad.
be atayed m Mr. Hu*fh
'• at the hack of ihe*Fountaiii-we)t ; an
^CVaa you have any regard lor my interest,
ittMueitd all ih;ii wiali the cnimlry w« ll ii» he
li ittrela of him. What makes my confine^
Wl ftry uneasy to me is^ that this is the
1^ of tlie ^ear that my ouKiness wmdd re-
fnvni^ ure^nce must; having bou'fhl ealtle
(aliff^m 1 ye;^rly «'eal) in ditlifeni couMtri^s,
s*4 taken t^niMui^K jiouth for the cattle, wliich
I iBwm pay , it t ihould never send a hea.<(t upon
Hi HhicU I (Mil uf<aid will be the cuve if either
My «i»q «ir M4t Ite not ailmiited to b>iil, to |iut
^affairii HI or*ler'. to bt»[»i'»< vou1i K|iare no
puu CO llii«, m% Airdii and Appin will bail me
btD^ tom wlutftcjr.
ll ^
i6||liai)i to any friei
M ftniiaded be i» u^
tasr ibf finit oppor
^^^at Edadhirifh,
^••trt'a at the hack
** Your return IMI eqiect in course of
post; and am, with complimeata to your ludy
and self, dear'Hir, your humlde servant^
(Stgned) *' James SriWAiT.**
** Fori WtUiam, May 19, 1752*'*
Addresaed thus: ** To Mr. John Mncfarlane,
writer to the signet ; in hiii absence^ to Mr,
John Flockh:irt, his prhicipnl clerks at hif '
bouse in the Mint, Edinburgh.'*
Inverar^. September 25, 1752.— This is llm ]
Li- Iter releiTed to iu colonel Cniwfurd** ofttb
of ibis date.
Follows the WnmNOft produced for tbeI
Kanpsel, B£i?jG Five Lettetis whote to ]
Hill 6T Colin Campbell, or Glcmuhe.
•* GUnuftf NovcMilftr 8, t74S.
*^8ir; I think 1 can now, >%iih ioroe cer*^
tainty , tell you, thai I am appointed factor over
ilie lunds you posses.^, ami other lauds ibat be* I
lonjfed lo your brolher Ardsbiel j aud as tht
term it oow at band, will beg^ the favour* you I
desire tite teuanta and pusaessora to be prepar* <
111^ the rent*. 1 am, 8ir, ymir niovt ouedtent
bumble servant. (Signed)
*♦ Cou?« Campbell.**
Addresseti tliui: ** To Jamea Stewart ui
Aucbindarrucb, iu I)umr/'
'\Glenure, October H, 1749.
** Sir ; As [ intend >1oaday next to be id
Diiror, to hold a Immu-bai he -court on the es*
tate of Aidiiliicl, and c^l for bygone renU, hnve I
sent you thin, to beg the fa tour yn\t would let i
the tenants know of ii, that they muy be pre*]
pared to make pay meuts, aud not he mil of th« t
way ; and I shall be i^M to ha«e the plea&urft j
t>f seeintf you at Tayiiahcinaaig' Monday after* J
noon. 1 am, Sir, your m«>«»t obediejit huuibte
servant, (Stgnad)
** CuLiN CampdellJ^
Addressed on the back, *< To Mr. Jamei
Stew art, brother to Ardshiel."
*» Glenurt, Dtitmber it. 174^.
*'Sir; This knomem 1 hiid ^ourn by youf |
servant^ wjib the 'iOt. 18« bd sierhutf, and iht '
warrHut I tsjrmerly ifave yon. Iiecei%e in* I
closed yiiur nule : your p^ymeula are ver^ri
' i^ood, Itji which I am obb^ed to you. t in- J
lend, God will, to he al Ediubur|rh on, or a da/^
or two belbre the 25lh curreui ; ihal ia, i io-
teud lo »et out frum llii*^ pla«;e thi'< day, or to-
morrow ei^ht day ^, and will i£i»l>y Gla^iow, and
make no slop by the way. Krmeinber ladjr |
Ardsibiera ditcbar^rs, an*! all yunr iHber tackv
ling. I heartily winIi you a if oimI journey,
(Signed) " ** CouN Campbell.*'
** My wife, whu, 1 find, is your sincere well- 1
wisher, returns you her beuriy tlianki», aud is J
ftorry you have hud iudi bad weather to travel^ \
wfheu you are so weak/*
Addressed on the back thua : " To Jattlt
Stewu-t in Auchiudarrocb to Dtir^.**
171]
25t3£ORG£ IL
Trial of James Stetvarff
[172
" Glenure,April6,.17SO.
« Sir ; 1 have youra, and think it is quite
right to^have buriiemen: tliey are frequently
very necessary, and can't well be wanted.
You will tlierefbre appoint two discreet honest
men fdr that pur|>ose of the tenants ; and, to
prefortiany conoplaints or objections, be sure
you prear them to fidelity in their office. My
wife returns you her thanks for your good
wishes. I am, 8ir, your most obedient,
(Signed) " Colin Campbell."
Addressed on the back thus: <' To Mr.
James Stewart in Auchuidarrocb."
«* Glenure, March 14, 1751.
<< Sir ; After yon left this, something has
occurred that makes it necessary that you do
not set any part of Ardshiel, Auchindarrocli, or
Aucharn, till I see you after my return from
Jn?erary ; which is the reason I run vou this
express. I am, Sir, your affectionate liumble
serTant, (Signed)
. "Colin Campbell."
Addressed thus: " To James Stewart of
Aucharn, Duror."
Then, the Proof on both sides being conclud-
ed, the lord Elchies said to the Lord Advocate,
that now was his time to proceed to give his
Charge to the Jury ; which his lordship did us
follows.*
Lord Advocate :
Gentlemen of the Jury ; It now becomes
my duty, to be assisting to you in the dis-
charge of yours, by staling to you this case,
and summmg up the evidence that hath been
gifen in your presence ; which I shall now
proceed to do as well as 1 am able, after so long
an attendance.
That attendance, I am sensible, must have
been very heavy ujion you, and hath been such,
as the like hath not happened since the Circuit-
Courts of Justiciary were brought to be held in
this county : but 1 hope you will not repine ot
the great fatigue of this trial, in a case, whereof
the importance is as unusual as the length of
it ; and in which your giving a just verdict
will be highly for the service and credit of your
country.
I need not resume to you, gentlemen, the
libel or indictment, whereof I presume you
have been furnished with printed copies before
you came here ; that, being thereby informed
of the principal circumstances which have been
discovered concerning the murder of Mr. Camp-
bell of Glenure, you might have leisure to weii^h
the Import of these, and be the better enabled to
* N. U. By the 16th act Anno 1071!, con-
cerning the regulation of judicatories, article
tenth, on the justiciary court, it is provided in
these words : ** That, id all criminal pursuits,
tiie defender, or his advocate, be always the
laii speaker, except in cases of treason or re-
bellion agiinii the king."
attend to the evidence that should be broogbt
before you ; and, on the other hand,* the pan-
nel James Stewart, who is now standing bis
trial, was, by that libel, fairly informed of the-
principal facts and circumstances that were
then discovered against him, so as he migbl
have opportunity to account for these, and <£er
himself, if notwithstanding such strong appear-
ances, be was truly innocent.
The crime itself, which gives occasion to
this trial, was of its nature the roost horrid and
atrocious that can well be conceived. Wilfbl
murder, at any rate, is a crime most heinous ; *
and concerning the first murder, God Almighty'
himself said to Cain, " The voice of thy bro-
ther's blood crietli unto me from the ground.*'
And the murder now in question, as to this
panucl's accession to it, was one of the most
causeless and un provoked that ever happened.
Poor Mr. Cam|»b6ll of Glenure was cut off in
the vigour of his life, in the very roarJ of his
duty in the king's service, and for no other
cause or provocation than his doing that duty ;
and then was he basely assassinated by a ruf-
fian, who lay in wait for him, and shot him
from behind his hack, so as he died upon the
spot, leaving two infant children, and bis
widow pregnant. And to this horrid violatMm
of the laws of God and of humanity, is to be
added, in the present case, that the sole ofiieooa
taken at Glenure was his acting in the quaiitr
of factor on the forfeited estate of Ardshiel,
agreeably to bis powers and instructions from
the barons of Exchequer, as being administra-
tors for the king, whose property that estate
was ; and it was resented as a capital injury,
that tlie king's factor should venture to exer-
cise his maj^ty's property as freely, as every
subject may do his own.
And last of all, that this murder was com-
mitted on the 14th day of May last, just seven
weeks after his majesty had given his royal as-
sent, and passed into a law, the bill for annex-
ing this and other forfeited estates to the crown
unalienably, and for applying the rents and
profits thereof for the better civilizing and im*
proving the fJighlands of Scotland.
The clemency of the kin^ had been extended
early after the last rebellion, by the ad tf •
grace of the 20th year of his reign, of whick
the pannel James Stewart, among many otben,
had the benefit; and other l^nefioal lawn
were then made, to secure and promote freedofl^
{property, and good order in all parts of Scot-
and. And, to crown all, this last most benefi-
cent act was made, for the more immediate
benefit of the Ilii^hlands of Scotland, out of
which three rebellions have been raised, since
the accession of the royal family now happily
reigning ; an act of beiiefieeoce not to be
paralleled in history, and calculated to render
all the inhabitants of the Highlands good and
useful subjects,under this government, by mak*
ing them feel their own interest in being ench.
and render! UQf the meanest of them, who will
be honest and industrious, free and happy : and
at such n juncture^ the murder you i
173]
Jbr Murder.
_ into receired qo sinali aggravation, aj
K was flying' id the face of the legtalature itself,
■id endcAfourioi^y as much as in these crimi-
■ab lay, to defeat or discourage the prosecution
afancaaure of gOTernnient, so highly gracious
aadhcDcficiaj to this country.
TM tralh is, freotlenaen, that though, God
he praned,tbe Highlands of Scotland are in
this age leas barbarous than they have l)een in
femcr tines ; yet, in our own time, there have
bcffB nch instances of remaining barbarism, as
sarve la prove but too strongly, that these coun-
iMsiaiid yet in need of being better civilized.
; it was in the year 1734, that, for an
\ of the same nature with what was here
taken, an attempt to remove certain Macpher«
sons hvinip on the estate (»f the duke of Gor-
din in Badenocb, the late (jlordon of Glenbucket,
bii factor or tacksman, was invaded, and r«;-
ceived many wounds, givrn with intent to be-
him of his life, thuui>h he chanced to
A. D. 1752.
[174
Yoo mast all rcmerubrr, how Imsely captain
'Monro of Cukairn ivas assassinated, by lying
la wair, when be was nctini: in his duty in the
king's service, soon after the defeat of the late
AaA yon most have all heard of the late barba-
laos enterprise of Robert Macgregor and bis
aceomplices, in carrying oflf from her own
ksuMj the unfortunate Jean Kay, a young
widow and an heiress, in the deptli of winter,
aad middle of the night, into remote parts of
Ikfe Highlands, and causing her to be married
ts ikat Robert, a person of no fortune, and an
aeiliw lor murder ; for being a conductor ui
ithicb attempt, James Drummond, alias Mac-
gn|ar, a brother of Robert, has been lately
oiai«ied.
Tbe cicuse offered for James Macgregor,
VM the aime mistaken principle that appears
t^hnt omled the unhappy prisoner at the bar.
Itus nii that James 3IacgTegor was actuated
^ me if the best affections ; he was seeking
Mfcnsaal advantage to himself by that entcr-
M^ bat only to OMke the fortune of Robert
iad the now pannel James Stewart con-
cmi a moral enmity against Mr. Campbell
rfCfcima, for disabling him to provide for the
k of hU brother, Charles Stewart late of
ted, by contributions levied from
I on that estate, who had been under
Bn alas ! what a delusion is it, from such
I to be led to commit or justify the most
I and abominable crimes ! the care of the
I of one's kindred is doubtless a laudable
and even when that good-will is ex-
I to the remoter degrees, and enlarges the
•f benevolence, there is no harm in it ;
1 in both cases it be conducted with jus-
ibe^ aad men exert themselves to serve their
' , witbont violating the rights of other in-
, ^or the laws of society and civil go-
at;' bat ho who roba or defrauds his
r, to pvofida for bit own boiubohl, or
the immediate children of bis own body, is not
the less criminal in the sight of God and man,
that he was moved by an affection, in itself
natural and just, but which he pursued in a
wicked manner.
And, in the present case of the murder of
Glenure, there appears to have been no rea*
sonable or probable scheme of advantage fta the
familj/^ of the late Ardshiel, or any bmly ; but
that it proceeded from mere wickedness,
malice, and resentment, the most groundless
that ever was. It affords a recent and shame-
ful instance of that spirit of revenge, which
was the characteri>tic of the barbarous High-
landers in former times ; and a pity it is, gen-
tlemen, and a reproach to the present age, that
it should be yet capable of furnishing such an
example.
1 am far from meaning by this, that the
crimes of a few %vir.ked persons can justly
bring a general imputation on the whole country
where these were committed ; we daily hear
of most horrid and unnatural crimes perpetrated
in the parts of the kingdom the most wealthy,
populous, and civilized ; but the part incum-
bent on the country where such things happen,
is, to purify the land of the innocent blooii
with which it is polluted, by bringing the
gnilty to condign punishment; and this is
M'hat you are now Employed in : and as you
have attended to tlie evidence patiently, 1 desire
nothing more, than, as an impartial and intelli-
gent jury, you may consider it carefully, in
order to discern the truth, and then to follow
that resolutely according to the conviction of
Jrour own minds ; which, if it lead you to be-
ieve the pannel guilty, you will do justice to
your country by saying so ; and if you are not
convinced of his guilt, in God's name, let him
be acquitted ; for lietter that this murder, atro-
cious and scandalous as it is, should go alto-
gether unpunished, than that one innocent man
should suffer for it.
In order to lay before yoo distinctly the evi-
dence that you have heard of this pannel's ac-
cession to the murder of Glenure, 1 shall tirst
of all recite the state or situation in which the
deceased and the pannel stood towards each
other, previous to the murder, and also that of
Allan Breck Stewart in respect of |both the
others. Sdly, 1 shall point out to you the
evidence that Allan Breck was the actual mur-
derer, which I admit to be a fact that was in-
cumbent on us to prove, in ordtr to convict this
pannel of wilful accession to it: and, lastly, I
shall sum up the evidence that has been
brought of that accession, and examine the
force of the defences or excuses which the
pannel has endeavoured to prove.
As to the first of these, the situation of the
pannel himself; that, gentlemen, you partly
know, and have heard proved : he is a bastard
brother of Charles Stewart late of Ardshiel, at-
taiutcd, who, out of his own tenants, and those
of Dongal Stewart of A|>pin, hit chieftain,
levied a regiment or battalion, at the head of
which he went into the lata rebelliony accom-
175]
25 GEORGE 11.
Tri^ of James Steiuartt
[178
panied, amon^otlien, by this iiaDuel, who bad
the benefit of his majesty's act of grace or in-
demnity ; whereby be was left at liberty to re-
main with his family in the country, whilst
Ardshie! himself, the attainted person, maile
his escape into foreign parts, leafiniif at home
his wife and a family of children, who, as Mr.
Campbell of Airds has deposed, were all young,
his eldest son being now, as be tliinks, about
eighteen years of age, and consequently, at the
breaking out of the late rebellion, must have
been alraut ele?en.
The late rebellion, as you all know, waa
finally suppressed by bis royal highness the
Duke, in the spring and summer 1740 : in the
year followingf, the act fesling the farfeited
estates in the king was passed ; and, in 1748,
the lands of Ardshiel, among others, were sur-
veyed by order of the barons of the exchequer ;
to the property whereof a claim was entered
on behalf of Alexander the eldest son of Charles
Stewart, the attainted person; which claim,
upon answers made for the king, was dis-
missed by the court of session : and thus it
happened, that there was no factor appointed
by the barons on the estate of Ardshiel, until
Colin Campbell of Glenure was made factor,
by commission, bearing date the 2dd February
1749, upon that estate, and also upon the
fteighliouring lands of Allan Cameron of Cal-
lart, attainted, and, adjoining to these, that part
of the estate of Lochiel which lies in the shire
of In?erness, to the southward of Fort- Wil-
liam, and betwixt that tort and the ferry of
Ballachelish, of which you have heard so
much, upon that loch or arm of the sea, which
separates Lochaber in InFemess-shire, from the
country or district of Appin in this shire.
Now, as this factory was ufranted full three
years after the rebellion, it is to be olMer? ed
how the estate of Ardshiel was |>ossessed and
managed in this interval ; anil this ap|>ears by
the oath of Alexander Stewart of liineriiahyle,
who hath deposed, '* That, het'ore the factory,
as he believes, the tenants paid their rents \o
the lady of Ardshiel. and that she again em-
ployed the pannel to deal with them."
It was during this period, timt the pannel, ate
the same Alexander Stewart dqioses, who lia<l
been a great many years airo tenant to his bro-
ther Arasbiel in the farm of (jlentluror, and
had been removed al-o several \ ears ago by
hib brother, again took poMtession of tlie same
farm; and that Ardshier?; laily anti the pannel,
jointly, intnxtuced certain new tenants of their
own choice, into different parcels of the land,
which Ardshiel, the atuiiited person, had him-
■elf occupied before the relicllion.
Again, wlien Glenure had obtained this
Ikctory, after he had been for some time abroad
With the regiment to which he belonired, in
Flanders ; and being now come home, was oc-
cupfed with the treaty for his marriage with
the young lady who is now his widow ; he did,
«8 Mr. Campbell of Airda hath depoM^, for
> eorae tine eospkiy the now peMwl» as his sub-
teter, in levying Ike MM efArdihiil, end
letting the lands ; anfl. to the nme pnrrae.
the said Alexander Stewart deposcay «* That
the factor gsf e tbe pannel the opportunity oC
having the greatest influence with the teDanta
of Ardshiel, more th'iD any other pcr^oB, by
allowing the pannel to aet the lands, whidi be
continued doing to Whitsunday 1751, if not at
that time also : but adds, that the pannel'a eon-
nexion with the family of Ardshiel, gave bin
also a natuuil influence over the tenaota, even
before Glenure'a factory."
The use which the pannel made of tfaii in- .
fluence, natural or acquired, appeara partly
from the evidence of the same two geDtlemen ;
for, upon this article, Mr. Campbell of Airds
hath deposed, ** That the pannel told him, thtt
whatever was made of these rents, over what
was paid into the exchequer, was accounted for
to the children of Ardshiel ; and, when be re-
moved from Glenduror, he told the deponent,
that he had reason to believe^ that the aaul ex-
crescence of the rents would still be accoontcd
for to them ; and, in that case, he would ba
easy as to his own removal."
And Mr. Stewart of Innemahyle dep«Mi
upon this article, '< That the pannel waa again
removed by the deceased Glenure, the factor,
from the farm of Glenduror at Whitaunday
1751, and tbe lands lett to Mr.Camphdl sf
Ballieveolan : that as the pannel ia thedcno-
nent's near neighbour, the deponent had trt-
quent opportunities of conversing with bia
touching his said removal : that the pannel did
not exfiect to have been removed, and aecned
dissatisBed that he was ; and said, he believed,
that Glenure wotdd not have removed him, if .
(Mr. Campbell of) Ballieveolan had not senght '
those lands from him: that the pannel further
said, that the tenants cfenerally allowed aome
gratuity to Ardshiel's children, and that these
lands were the best farms on the estate, and
mosit of the benefits accrescetl from them;
and thoui^h he himself could be provided ef a
farm elsewhere, ^ct the children would be de-
prived of that benefit."
lu what iiiaiiiier thi^ removal of the pan-
nel, from this bentficial farm of Glenduntr, to
t^hicli he had last entered vince the rebeilion,
without any lai^iiil title whatever, was bruugbt
alwiiit, ap|»ear8 from the instructions to Glennie
from tne harons of exchequer, pniducett and
proved before you ; the last of which is in
thefie words : **'You are, on no condition what-
ever, to lett a farm to any of the friemls (i. e.
the relations) of the forfeitiutr person*." And
thou|(h it lie true, that these instructions beer
dateihe 25th July 1751, about two months afler
the actual removal (»f the pannel from Glen-
duror, these were nevertheless the true cause
of that removal ; for it wasiiuown orexpeflted
by the factor, that he would receive such in-
structions, there having been notice given li
the lords commissioners of the treaaury, ef a
considerable possession of the esUte of Lnehitl
having been lett to, or for the use of one of the
brothers of tbe attainted perMm ; upon wludi
their krdshipi had diraoled the bniou of Iht
to pird^iie Mgmmi the like hernjr
tli» fnmre, in ovAer to avoid the occa-
of cocitimtiD^ that Iratlins: or intluence
IliP raXf^r tnhthtUUiz ilnise eftaie«, thai
Ifieed flci mach disturbance apd mis-
public.
it «rB« throuirh tiecesaky, and in
» fi^iihral tltfti^iinrgc of the duty «if
iktftl Mr« CamjilK'n of Glennref at
or in Way 1751, removed the
fitnii hit |ioS9eBsioit of I he Vnryi of
, to the cnntinttattce whereof he had
tiiie or daim wlinisoever ; nm\ also
to rmptoy the paiinei no logger .is hi^
lor or tsvintauti m ruaaagiiig the t-state
'lid.
to cotioelve, that ihere was any
iif jtni caiisc giren hy this condvTCt of
fnr reiientiDent or hatred from this
it tiad heen tnie» which the
1 J In Stewart of Jnucrnahyle,
he Wlieved, Glen tire would Dot have
fajmielf« it Balliereotan had nut
m f^tieited tliia po^sesiion of Gkndaror
mild yet, that the pannel conceived
and prosecuted such disposilion
Otttrageoufi m;intier, hath heen now
vou. But, Wfiiic I tncn-
ntcnce orihis, 1 must pro-
li canse of diflefeuce be-
and of animosity eon«-
1 1» tmm the aftei'proeeed-
I the spring of this fnp»»fnt
pmr ; whtn Hk having taken the re&olurion |o
iwiittf* • few of those tenants, who hnd been
iMRMliieed to tli^tr po^ensions, as I liave tni^n-
H ijuly Hiid this nunnelf in
lie rehetltou Ann the date
trs, that the pannel beinjj
I'j would l€»i»sen his interest
''i peopte, if he sliotild
r persons in the po<i-
ki..i4^etr had bestowed or
Umk the rr^liMion to oppose these
uliirli he profeculed, hy repre-
I ttn*! : ing of it in the country as
ny act ■'' ^^ nmon^ liecao*.^ the king's
r tiioagtit tit w» remove four or tire tenants
kmif taltodiioH itpon this estate, who had
Am^ leases nor ohl pos&essiotis, to
m point of righti or in point of
In bo contiuiied : and this ground less
to ihooe remoiPings the pamicl set
i and c^Kidocted at hi«< own ex pence, and
fifo ttitoarlf ^reat a^tation and trouble in the
MVrculioa of it, hariag gone to Edinburgh
m Apnl tol, on parpote to present the bill of
mtftmmon of tbctse removings, whith you
hrm bard, setting forth mo&t frivolous
pmrndmi artit ^n ih«H ^viOiout the knowledi^e,
I tbr the expence by
((I whose names he
r that bill of !«u*£pf niton,
i al Ivlinburgh an order
Ibe Inll frum ib^ lord lluti ordinsry, that
tra •hiiuld be put in to (he same, anit
r oliyiiig^ «<cCiitioa in the iuterirn :
XIX.
A. D. 1752.
[ITS
ihsiMitrval
■t%»Bbb to IX
fihicti i
MylirHipti
lit teottivt
MfOCI }
be tin
with which sist, and certain td vices he had re-
ceived at Cdinl>urgh, fur making ajijilicntioa
for those tenants to the baronti of E\che<]tter,
when they should meet in the begmning of
June, the panoel returned to his own liouse
on the 27th April ; and then sent (or those
tenants^ and gave them notice of his proceed-
ings at Edinburgh on their account ; and that
if they had a mind to continue iUtrlv pciBses«
sions, they were advised to go to Glenure, and
seek their possessious (or demand such con-
tinuance;) and if he did not grant their desirei^
th^y should send for a notary, and f^o with him
to protest against Glenure ; and if tbev pleased,
he wouhl send for a notary, to wFiich they
agreed : and accordingly the pannel sent for
Charles Steivart, who bsth been examined on
this fact, and sent him along with the tenauta
to Glenure's Imuse, where l»e intimated tho
sist, and took a protest against hiui on the ist
of May lasL
It was upon receiving this notice of a sus-
pension presented, aud a sist granted, that
Gfennre repaired to Edinburgh, and put in his
answer to the bill ; upon considerMton of
which, the bill wns refused or dis(ni«»5cd by the
lord Haining ordinary; nod then Glenure re-
turned to his own house on JSuiurday the 9lb
May last, in order to take the neces^ry niea.
Hures for executing the teraovings that ha4
lieen thus opposed.
This part of the panners proceedings it
proved by the oath of Charles Stewart his
notary, by the pauDel's own examinntions,
which you have heard read, and by Duncan
Maccoll in Ardshiel, one of those tensnts, whn
bath now deposed, ** That, upon himscit adiI
others being warned to remove from the hnda
of Ardshifl, as at Whitsunday hst, he Ibi- his
part h»d no intention other tiuu to snbuMt to
the warnjog, till a paper was procured iVom
Edinburgh, which he heard read by Char J est
Stetvart, notary at Aucharn, as on a day ha
was there, being along with his neighbours fnU
vertised to meet there, where he and his neigh-
bours were told by the panoel and Charles
Stewart, the notary, that the puper brought
from Edinburirb, contained advice for ttiose
who bad been warned to remove, to cominue in
their possessions ; and that they should go to
Glenure^ and osk the same from hJm. And
deposes, That he gave no alio wan ce or man-
date to the pannd to make any application at
Edinburgh against the removing: that, before
be beard any thing of this paper from Ediu-
burgtf, he had engaged to serve as bouman td
the tenants Glenure was to introduce ; but
that, on hearing of this paper, he preferred
keeping by hts neighboor^, as he considered
the being continued in hit possession, did the
law flupfiort him in it, as more beneficial to
him ! and adds, That the procuring the pap€r
at Edinburgh cost him no money.'*
To the same purpose, John Macconibicb,
another of tbove tenants in Ardshiel, both de*
po^ed, aud adds this further circumstanco^
«* That a» to bis agreeing with the iticotoitig
N
179]
25 GEORGE II.
Trial of James Stetoarit
[ISO
tenaots to be their boamin, he heard both
Glenure and these teuanta say, that it was by
Glenure's adfice that this was done :" which
is, by the way, an instance of the humanity,
with which Glenure acted on this occasion, in
being at pains to provide bread lor those per-
sons whom he did not think fit to continue as
tenants on this estate of Ardshiel, where they
bad been so lately introduced by the paonel.
These then were all the causes or offence,
that after the strictest enquirv, can be disco?er-
ed to ha?e been ever given by Glenure to tliis
pannel ; namely, that Glenure as factor upon
this estate of Ardshiel, removed the pannel
himself from the farm or possession of Glen-
duror at Whitsunday last year, and gave over
employing or entrusting the pannel to act
VDuer nim in the management of the lands of
Ardshiel ; and that he was taking measures for
removing the few tenants lately introduced by
the pannel, at Whitsunday thu year ; which
measure he persisted in, the opposition that the
pannel was pleased to make notwithstanding.
V ery strange causes, it must be confessed, for
the pannel's conceiving a violent, and even a
mortal enmity against Glenure ! And yet no-
thing is more certain, than that Tiolent offence
may be taken, where no just, or even plausible
cause for it hath been given : and, from the
first murder recorded in sacred history, down
to this now in question, often hath it happened,
that wicked men have hated their brothers
, without acause, that is, without a reason or just
cause, though there was always anoccsMon, or
a motive such as it was, for that hatred being
conceived.
Again, it is to be considered, that occasions
of offence operate differently, according to the
education, temper, and character of the party
who meets with them ; and we hare now heard
from tlie evideuce in this trial, what a wrong
way of thinking this unfortunate pannel is
possessed of, in holding it to he a cause of
mortal enmity, that a man should he removed
by another from his farm or possession which
he hath no manner of title to hold or retain :
vhich is a pr^udice or delusion, that, in a
lower degree prevails elsewhere, but seeou
to be in a particular manner prevalent in
the Highlands, and was the cause of the at-
tempt made by the Macphertons to assassinate
Glenbucket some years ago, as well as the
cause of the horrid murder into which you are
now enquiring.
And, for one proof that this pannel is deeply
uoisoned with this most erroneous opinion, you
heard, gentlemen, a little while ago, the objec-
tion that was by him made to Alocander Stew-
art senior in Lagnahaw, one of the witnesses
in the list served upon him, and called up to
give evidence against him, to whom the paonel
objected , that this witness bore enmity against
him, for that the witness wasformerlv in pos-
session of the lands of Aocham, woich^the
pannel now holds under Mr. Campbell of
• Airda; and that the pannel had catised the
witness to be removed from thai ponanioD,
and succeeded him io it : an objectiMi 19 itasif
insufficient in point of law, whidi eaimol sup-
pose men to be so wicked aa to eoterlain mortd
enmity for such a cause ; and thenfbro, aa yo«
heard, it was over- ruled by the court ; oot*
withstanding which we freely passed from itm
witness, bemg satiafied that we had erideiiee
enough besides, and unwillmg to leave mf
room for the pannel to eompiauia or for you,
gentlemen of the jury, to apprelMiid that ai^
one witness was used against him, of whosfi cm-
dibility there conld be the smalleat np^Mojaii;
but the very moving of such objeGlion oq Ike
part of the pannel, affords one proof itf kii
own sense of' the nature and degree df moh
offence.
Another signal proof of this i^neara ffomlbt
oath of £ wan Alacintyre,latoherdi|i Qleniiiimr,
who hath deposed, ** That ho engagvi) If Is
herd to Mr. Campbell of BallieToolan ia Iba
farm of Glenduror, for the year 17j»l ; aad
that, the day after he entered into his acitisa
there, the pannel challenged him for ^oeaptiif
thereof, and told him, that ho woold befit-Mdv
with him sooner or later for doing it ; and iMi
if he did not meet with resentment himatlf ■
his life-time, others, such as his firicndi^ Wfkl
meet with it after hia death." Aed •«%
'* That he himself was never in thepemMl^s
service.'' This was surely canying thia dshh
sion to a mO(St extravafi;ant pitch, and sneh Ci^
to any stranger to this odd way of tkinUeg,
must have appeared incredible, till he heard
the proof of a fact, which demonstralee hew
deeply that opinion is r(K)ted in the mind of tUl
pannel.
And, accordingly, we have heard how thU
was farther dis|>Jay(Ml by his words aed bf his
actions on other occamons, in respeot of the
deceased Glenure, tor the causes oir offence i
have mentioned, by the evidence I shall OOV
point out.
And lirst of all, John Bceck Macooll, the
bouman to Appiu (who though he Uvea u ■
desart, appeareid to me to have given hie efi»
deuce in a most natural ingenuous nennvi
and, by his own words and behavioar rehtsd
in it, discovers a degree of sagacitv whiebf in
a person of hia situation, surpriaed me ; end)
upon the article 1 am now 8|>eaking o<^ he de*
poses, *< That in a conversation tim deponeei
had with the pannel, as the deponent beat re-
members, about two years age,'' ^whetfier he
was herein accurate in the cbronwogy, in nol
essential to the question in issue) ** muntinj
being made of Glenure's being about to. lelie
on himself the management of the estate el
Ardshiel from the said pannel, and therej^
disable the pannel from being of any serfien
to Ardshiel's children, he heard the pannel anji
he would . be willing to spend a shot apeR
Glenure, though he went upoq his kneca tp hin
window to fire it: and farther depoees, tbetlm
heard a waif (that ia a flying or nneeclRJft
rumour or) re|)ort in the conntryt ^hat Aid*,
shiel (the attainted peraon) bad sent hamm m
menage, that he beliefed all his friends wem
181]
Jht Murder.
WU allowed to ffti oo Ai
«iiolher remirkable conversation of
•aoef's vsL die sume spinit but earned a
4ail fkriHer, is proved to jiive happened
dratmui lAilt 175 1« withtn the panoel^s
Mvir*koi»«« M Aneham, betwixt him and
iC to o«tn Mrmnts, who all coociir in
■filiftafr.^ T 'in Wore Maccoll, Dou-
fiH■enK« ar '<('t^ Malleoli ; of whom
im bilb tifjupwwu, *''TliAi he was present
If % oottttmsloii tfnil hrt|fpened bet^^ixt the
Joliv Begr tnd Doitj^nl AlaccoUs, both
Co flic pannel, in his brew- house at
, N^We day-lig:ht, upon a morning
Ysit (or Cbristmnt*) last, as the deponent
PDMObim : that the depc^nent was then
te|ilo3fad hi diftirirng' th^ second draught of a
Iff aqmiirirte, and the pannel ordered
In (rife him, and people preaenl^
wliieh the deponent did : that the
i« Otenure would not take the rent
lilt itiMflta of Aucharn« part of the
kecauae they had givert the
lanrley, which Glenurc iilled:cred
heve paid him: that the pan-
it was hard to refuse the
itf BitMtfy froiH tlie tenants in a scarce
\ twf OMerveit that it would be of no
fitem^^liai^ce to him, the i.nTmf'l (hough
aAHMMr'bajek Ibe barky irison
f v4ir Ir mild be to the t* [ subse-
iw, i«l caie they were obh^d to pay
% bear and meal,'' (to- wit, in kind
foiti' i '* and i^ld the tenants
►i»er» ly to he very ill off;
ir, if GMmiro w*;ut on in the way he then
•I w*j Rkely b« would be laird of Appin
t a ^f^rf iliort i n<t that he knew unce a
Ml€f <Mlllt ' ^Pt^io ^b<> would not
ITImil^ tci ^u ou atflueha rate: 'Jo
«lir tirponetit and the rest answered,
lliM*w nu ooinmoneri in the country
' Blrive or eoutend with Glenure to
fWf»t>fiF nation in the bit^w-house '\h flif*
irjftti^ <!r eiqitained by the otiier two
NMlMtM*tfHlt : and John Beg Muccoll adds
IbiitCMhi^tTCt-, '' That afler he and Dug^aUl
sqbU •■ 'le hrew-hoone, either
_^ ^1^**' ' iierenf^er J they talked
mplfer what the iiupor' • c>nversation
I^M li# I mud that ibe ^\ a^ at a loss,
^Mitr meannid^r it %% - u^enietit to
dcsiiin^, nr a» E^ > ■- .igainat (he
of ApptOf as nru t>f nig so faithful
leL a^ he ei peeled them to be J'
ba> fr*? '-T ^ ,ir conaideratioOt gen»
liHlit Sn Beg Maccon was
M4b tbe rf|Eh. >u i-.. conjecture; and that
f«fMti«^ can rcceife no other con-
, tbait that ttie (mnnel took that occa*
ittiMli^fc tbe«««erfintaof his own, who
•Mof tm* tr?tw, to resent agrthist Glenure
'tnmon people of
r < id had thus re-
aimI ciJaiggcratad to tbem; ckf ftt
A. I>. 1752.
fl&2
Teaat to feel their pul^t, and try how tbe^
would relish Stieh a proposal or insinuation.
But farther fitill. the pannel continued tc? dia-
cover the rnncour with wijich his* own heart waa
filled a^gj^dinsC Glenure; the next instance of
which (hat hnth apji^ared iipon the evidence,
hftppened in April laat, when he was on hid
road to £ldinhurgh, with intent to offer a bill of
suspension of the removing of the tenants thai
hath been mentioned: and. here three circum-
ttancaa are proved hy the testimonies of A lei*
ander Campbell and Ewan Murray, two of his
landlords or innkeepers by the way, and Colin
IVfaclaren, merchant in Stirling, who fell into
company with the pannel at both their hoatet,
and travelled io the panneWs company aonie
miles on the road towards Stirling*
Alexander Campbell in TeynalnJb hath de*
posed, ** That in April last the pannel called at
the depoDeot*8 house in the morning to have
his horse corned ; and having calico for, and
got a dratn, which was afterwards set down
upon the table, one flaclareni a merchant in
Stirling, who had lodged with the deponent
the night before, being present, asked the pan-
nel, if he would not help the deponent to a
dram? and the pannel answered^ he did not
know any thing that he would help the depo-
nent or any of his name to, if it was not to the
gibbet: and af^r some farther conversation,
the deponent said, thbt Glenure, as he sup-
posed, was the person of the (deponent ^s)
name with whom the pannel had the greatest
quarrd ; and the deponent did not know any
good cause the pannel had for it. To which
the pannel answered, that if Glenure had used
the deponent as ill as he had used him ^the
Cannel,^ hy turning him out of his possession,
e would nave no less quarrel with him than
he had. Aud, upon the panne^s interrogmto-
nes, the witnrss added, that at that time he
thought what the prinnel r>aid proceeded frotn
malice, and that the pannel was then pifrfectly
Bober,**
This conrer^ation was confirmed by Colin
Maclaren, the nierchant, who lodged in that
house all night, who adds, *^ That the pannel
then said (speaking of the Campbells) that he
did not chuse to be an executioner, hut be
could draw down some of their feel ; — and that
at tirst, during this conversation in CimpbeH*f
house, he thought that the pannel had been in
joke, but afterwards it was like to become
vety serloas; for the landlord and he cauie tu
pretty high words toffelher.*'
The next landlord, Ewan Murray, at the
west end of Lochem, hath clepr>sed, " That in
April last, the panne?, and Colin Maclaren,
merchant in Btirling, came to the depunent's
house, and tlie pannel lold the deponent, that
Glenure had warned away sercral fnuiilies in
ArdMifers estate to remove: .ind itu»t he was
tnfbirned, that none of the i the thr-
ieited estaien had power to n: tenants;
and that he was going to Edtnburuh to take
advice of lawyers about it \ and if he had not
thAt poweri tbtt the piuiiiel would apply lor
183]
35 GEORGE II.
TruU qfjanut Slewirt,
[181
suspension in his own name, and in name of
ttie r. Bt of the leoaDts : and ibe conversation
turuin^ upon an officer in the army that was
braindi'd «iih cowardice, and liad been broke
on ihatacciiiiiit ; the pannei said, that he bad
reason to sa^', that Glenure was as flrreat a
c'0.«ar<l, as that officer ; for tliat be, the pannei,
had riiulif n^bd bim to lii^ht him, which Glenure
deciinfd ; and ilesired the deponent to tell
Glenure, that he had told him so : but the de-
|ioiient answered, that he would not carry any
such mcssaf^e tVom one |;entleiuan to another :
aud from the conversation, the deponent on-
derstood, that the arms with which the pannei
had challenged Glenure to fight, was with
pistols.'*
And it is true, gentlemen, that this witness
adds, upon the pauncl's interrojratory, ** That
he thou{;lit the pannei was a little concerned
with drink ;" but it* it was so, turn verdt voces.
This conversation is again confirmed by Mr.
Macloren, the pannel's fellow- traveller, in both
the parts of it ; who adds this circumstance,
that the latter part of the conversation hap-
pened upon the road after they left that bouse,
and Murray the landlord rode some part of the
way along with them : and then Mr. Maclaren
deposes to a tliird conversation betwixt himself
and the pannei, in these words : '* that, after
parting with Ewan Murray, in the course of
their journey, the deponent found, that the re-
moving was much at the pannel's heart, and
the deponent endeavoured all he could to divert
the conversation to another subject : that the
pannei told bim, that if he failed in a suspen-
sion at Edinburgh, he would carry it to the
British parliament ; and if be failed there, told
bim, after a little pause, and with an emphasis,
that he behoved to take the only other remedy
that remained."
These last words, gentlemen, need no expla-
nation ; for surety, after the judgment of the
British parliament, no other legal or lawful
remedy could remain.
And, as to the condition of the pannei during
these conversations, Mr. Maclaren farther de-
poees, ** That he did not think the pannei
drunk either in Campbell's house, or in Ewan
Murray's house ; but after leaving Murray's
house, the V drank two or three drams at l dram
house, and afler that the deponent thought him
much concerned with liquor ; and it was after
taking these drams that the conversation be-
tween Murray and the pannei, with respect to
challenging Glenure, happened ; and that the
deponent and the pannei had rode several miles
together before the conversation about the Bri-
tish parhament ; and the deponent thought
him even then still concerned with drink:*'
and very likely it was this that threw the pan-
nei so much off his guard as to speak out, to
his landlord and his fellow-traveller, so much
of what lay deeply at his own heart, and to tell
upon himself this matter of fact about the
challenge be had given Olenara to fight him
with pistols.
Aucbappearing to hare been the temper and
disposition of the pannei towards Glcnue in the
month of April last, and before that tiaie ; I
shall next point out to you, gentlemen, the evi-
dence concerning that of his friend Allan Brack,
who himself does not appear eier to have had
any acquaintance of, or intercourse with Gle-
nure in his life, but, by the pannel's own shew-
ini;, was his kinsman, and had been bis ward or
pupil ; and, bv Breck's character, and his then
situation, as being engaged in foreign aervioe^
aud not at Uberty to Eve openly in this king-
dom for any long time, though be went about
among his highluid friends without any scruple,
he was a fitter instrument of the vengeance
meditated against Glenure, than the Maccollt
the pannel's own servants, or any of the oom«
mon people of A|ipin, could be.
And, concerning this Allan Brack, John
Beg Maccpll, one of the pannel's aervanlB,
hath deposed, ** That, in March last, he i
to the pannel's house, late in the cveniqr«
dressed in a blue coat, red waistcoat, blade
shag breeches, and a feathered bat," (that is in
his French dress, which the witnesses call a
side or long coat, in opposition to the blaok
short coat with silver buttons belonging to the
pannei, which he was afterwards seen in ; and,
upon this his first arrival, the wimess proceada
to depose,) «« That he looked into the kitcbcB,
and went immediately to the room where the
pannei and his family wera ; that afterwards he
used to go through the countrv to diffeicnt
places, and came frequently hack to the pao-
nel's bouse: that once he remained tbore ■
week, which was tlie kmgest time that he
stayed thera at one time."
Here b then the intimacy still subsisting |ie-
twixt the pannei and Breck, that natniallj
arose from the acknowledged connection be-
twixt them ; the pannel's house was his head-
quarters in the country of Appin, from wbenot
he made his excursions to visit his other friendi
in those parts ; and, during the pannel's ab-
sence on his journey to Edinburgh, Breck went
over to see his relations in Rannooh. And it
hath appeared upon the evidence, how tho-
ronghly Mr. Breck espoused, and entered into
the notions and sentiments of his old guardian
and friend the now pannei, with reapeoi to
Glenure.
And on this head Duncan Campbell, change-
keeper at Anuat, deposes, ** That, in the month
of April last, the deponent met with Allan
Breck Stewart, with whom he was not befora
acquainted, and John Stewart of Auchnacoan,
at the house of the walk-miller of Achosragan,
and went on with them to the house ; that
Allan Breck said that he hated all the name of
Campbell; and the deponent said, he had no
reason for doing so ; but Allan said he had
very good reason for it : that thereafter they
left that liuuse ; and, after drinking a dram at
another house, came to the deponent's house,
where they went in, drunk some drams, and
Allan Breck renewed the former conversation ;
and the deponent making the same answer,
Allan laidy That if the deponent had any re«
1
Itf J ^^^^^ fof Murdtr.
muA $ut Mi fnifiditv lie would tell them, that
J Ik&fnlhr^ Ml lorn otil Uie pusiMessoni of
Mriliiir< etl»le, he irciuld make bUck cfK;ke
•f ihm liefi>re liiey entrred ititu potsesiion ;
Iff tvhicb tbe ile(>oaeiit understood ehooling
lMi,ililtiiMf • eommon \>hrMti in the «t»uii-
I try : iImA JoTin Stewart said lie did not blame
ijj^aigw «a mucii as Daltieveolan, for taking
H^B fmmamious^ wbrreiui Gleaure was doing-
^^Ei^t«erti€«: and Allan Breck replied, tbat
^^BhIImIv be b*<i another ^ound of quarrel
^HmI GiMiarc, for writings to colooel Craw-
mi^lksl bit, Albn^ ivas come home from
Fnsoe i ha^ that he wfts too <*UQtiiiig^ Tor him ;
Utihaif wImo At Edinburgh, he had made up
hii pisei intli general Churchill, and htd got
hit pMVt itliicli lie had m his pocket-book:
ikm Qm^tfmumi aiked a iiqfht of it ; that he
•i»cbe4 libDOCiket*hook, but conld not find it ;
v^mk iilttcti lie lore a leaf out of the book, and
■aIiI, ibnv is vraa. And deposes, that he said
iwvoAj tHMi mer, he would be fil-sidtss with
0kfMit« mktn >ter he met hinii and wanted
Ibiiii to meet him at a conte*
ceareraation is contirtned by Anne
.nttotlic ^aid Duncan Campbell,
'< t, Tt -Isf- heard Allan Breck then
Il« I shun Glenure, where-
huix , L ; ^vbich she understood,
dal l>e mwm t« do hurt or barcD to Gleaure,
«f«T he «iw him."
in i« further contirmed by Angun Mac^
,1k -miller mentioned by Duncan
f«ert Stewart, a fourth
t >iii[iany, who adds in-
AlUu Bteck was much in drink at
•f otleritig the abore cxpreasiof&s * but
i«y aee nnt ihe leai to be regarded in this Iriat,
%h« tlie oceaatofi of theM threats, the repe-
liiaa eC thvin, and, butt of all, tha fiital cjtecu-
linkal^ heett at the aumc time proved before
like converftatioo of Allan Breck*s
to hftve happened at the hou»e of
llfteooil, change- keeper at Portua-
tMtkf hf fbe landlord, and by Anne hU wife,
«l# iipfc, '* Tb4l« one momiDg in Apnl
t«l« Attan Emk beinff in hii house with John
i«bit UmccolT, then servant to the de*
Into the comjiaoy in a shabby
i llial Allan Breck a«ked who he was?
IB lb* Mil John Stewart etiswered, that he
viiaB baaiest poor man, with a numerous
taijr of aoiall children, and thut it would be
fiHI dianty 10 any boily to ai»tHt him ; tipon
wkilli Atlaii'flrrck dchiretl ihc $aid Jabn 8tew-
«t la gite tli«< aaid Juhn Maccoll a stone of
•■y, and be would pay for ii, which llie said
Sikm Mtcwan iirfiini^i'^il in ihi i tiuu ihe tiaid
lAien f u L dram,
" "ii»tij i' 'I <, : , I,' V 'I ,, :'.;]■ tlie red
lid givw him what was much
mr^ that ihcf gave no great
time eac'; aX thf* time ; but,
the}' keAfd of ' murder, believed
Okoti(«t a» he vtas oomtuouly caUed
A. D. 1752.
[IfiO
I Colin Roy, which means Ited Colio, to iht
country,"
A third and very remarkable instance of Al-
lan Breck^s conversations on this suhjecr^ wat
one which he held with two of the panner% ter*
vants above-mentioned, Dugatd and John ^Ior6 .
Maccolls ; whereof the former dep06e*| **Thal
a^ he and John >]accoll were harrowtog in a
field belonging to the pannet at Anchftrn^ being
the same day, or the day after the paime! went
for Edinburgh, (that h, on tlie 3d or 4^1 of
April) Allnn Breck Stewart walked for a good
time about the field ; and as they were loosing
their horses, the said Allan Breck and they en-
tered into conversation about France, and |)eo-
pte from this country there; and John Blore ,
Maccoll aakeil, if there waa any prospect of any
of them coming back? Upon Allan Breck 's
answering, he was afraid tbay would not, John
More said, he wished that none had ever come
from that country ; in which the said Allan
Joined him, saying, it bad dispersed ihe friends
he most regarded ; and (then added) that it waa
a particular misfortune, that the manacfement
of any concerns they left behir>d Uiem, fell into
the hands of one that w&s about to shew tbeiD
no manner of favour; and declared, Uiat be '
meant Glenure ; mid told, that the commonerv'
of Appin were little worth, when they did not
take him out of the way before now ; and upon
their saying, nobody would run that risk, not
knowing who would stand by them, Allan
Breck answered, that he knew^how to convey
out of the way any person that would do »0| '
that he would never be catched ; and also Aaid»
that they, and the tribe they were of, (meaning
the Maccolls) were not like to he the least
sufferers by Glenure^s proceedings.*'
John IVlore Maccoll aweary to the same con-
versation at the harrowing, and deposes, that •
Allan Breck then said, If they, the cotn-
mooers of Appin, were worlh tiiemselv^, rhey' I
could keep out Glenure, and hinder him from
oppressinjLf them ; in which case they would
noi be banished from their natural possessions ^ |
and, upon ihe deponent's answering, he dtd^ I
n4t see how any body could pretend to strive or* I
slriiggle with Glenure in that way, as he had
the laws of the king and country for him, and
nofiody to support or take them by the hand 1
aAer their so doing, Allan said, he had it in'1
his power to save or protect any budy that j
would put Glenure from trampling upon ihe ' '
country in the manner he then did, *
Here then was Allan Breck Ihe pupil, in^
spring last, a few weeks before the murder hap-«
pcned, speaking the very same lunguige, tod
u^iog the same argumenta« with two of theao'
Maccolls, the servants of the panne), withal
which the pannel himself bad been praciisinif^
upon them in his own brew-house about Christ- m
mas likat ; and this conversation of Breck 's was
not like the former, after drinking drama ml
change ^houaea, but when be was sober and^
ct>ul, walking in the tields about the pAnnera^
house, which waa in effect his home. <
And) to the evidence on this article, naaj be
18'
7J
'25 GEORGE II.
Trial of James StetMirtt
[188
added, what the panncl himself bath declared
ut hiR fiivt examination belore the sheriff* sub*
tititute, which has beeu proved and read id your
tiresence, when, being interrogated, ** It' he
lad any conTerMUion with Allan Breck con-
cerning Glenure? be answered, That tlie said
Allan asked tke dedarant, if be beard that Ser-
jeant MoK (Cameron) was come from France,
or if be waa ui the country of Appin ? To
which tlie deckreal answered. That he did not
hear be was in Appin » but be heard be was in
Glenetif e last year ; whcreapon the sud Albin
lold tlie declarant, that aerjeant More swore he
woubi kill Ulenare, berause of the treatment
lie gave the ImeetieD the estate of Mamore,
pari of Lochiai estate. Declared also, thai the
aaid Allan Breck threatened that be wonki chal-
lenge Ballieveolea and his sooa so fight, be-
cause of hia reaiof ing the declarant Ust year
froB Glenduror, and being about to remove the
other lenanta this year from some other parts
of the cstau of ArdshieL"
Now, aa to the mention here made by the
eamiel of aerjcant More Cameron, I sliall
nereafter have occaaioa to take notice of the
oae the pannel made of it ; but have here onlv
to obierve, that the oausea of offence, for which
the pannel saya Breck threatened to fight Bal-
lieveolan, were the venr nroe which tlie pan-
nel himself, aa well as Brack, resented an high-
ly against Glenura, namely, the removing the
pannel bimwif from Glenduror the last year,
and being about to remove other teoanta of
Ardsluel this year: and though the pannel
carefttlljF avoiiksayime any thing of Breck's
threatanings against Glenore, efter he bad been
actually murdeied, and bad attempted to throw
the suspicion of that upon aerjeant More; yet
here, by the pannel's own ahewing, Breck had
eotered thoroughly into those quanrels of his
for the actual removal of himacif, and tlie in-
tended removal of others, and threatened to
challenge and fight BaUieveofam upon that ae*
And aa to the other ground of qnarrcl agniaat
Gleniire, which Allan Breck mentioBa in ooe
of the above ceaveiaatiens^ neaaely, for his
snnpoaid writing to coluaei Crawfuni, that he,
AiUu, wai ooese home from France, I shall
nM lake upon me to explain, or to geese in
what manner Allan Breckceaaetobeposseaeed
with such a conceit ; because we have beard
no evidence coocciaiog the nsaneer in wluch
he received sneh piece of faise informaiioo or
inielligence ; for that it was false hath been
fuUv proved belbre yea.
ArsK of aU, coUnc4 Crowfiml hinelf ^^ be-
iiK^ asked whether tkedeceeaed CoknCamp.
bell of GIsMMC ever told kinft, that Allan Bveck
deserter, and in this eoueinr.
Slewart was a
haih answered upen
And next, Mr.
Msed. ^'ThaA, ii
maa ealanci Crowta^
in the negnlive."
9i AM hmh de-
it was so : that the deponent did enqnire, and
wrote the colonel for answer. That he bend be
had been in the cooatry, but that he waa than
eone away : that this was in •the menik sf
April, to the best of the deponent's reaseai-
branee ; and it seems about that time AllaA
Breck Stewart had gone to Hannech, whiek
gave occasion to the deponent's being informed
that he was gone away, and did not hear ef
his having returned to the country till afhar
Glenure's murder ; and thinks he wrote aha
to cokinel Crawfuitl, according to the infecmn^
tion he bad got, that Allan Breck Stewart wat
in use of coming crery year to the eemlry
since Ardshiel went to FnMceL"
And Alexander Stewart of Innemahyle de-
poses, «' That he lemembers that Allan Break
Slenart came over to thia cenntry a year at
two ago, and stayed asmc weeha among Ms
friends ; but neither at that time, nor the krt
time, did he seem, so far aa the deponent a^
served, to be in any apprehension of bei^
taken ; only, as he had been once in the anty;
he did not chose to meet witli any of the knifli
troops."
And besidee all this, it hath appeared in the
proof before you, that Brsck Stewart remalnad
in the country, as usual, a lull month or asaM^
after be had" mentioned the aoppoaad nolist
given concerning him by Glcnnre te eelenrf
Crawfuni ; and it bath not been proved, or emi
alleged, that in pursuance of that notiee, whn-
ever gave it, tkero was any aearch made far
Brack, or the smallest disquiet given tn hun#
or any alarm or precaationa taken by byn,- til
after the murder of Glenure. To aaj nathiap
thereftro of the injustice of that cauae of m^
fience, had it been true, that Glenure, n goiA
subject to his majeUr, formerly a military, ani
still a dvUoflieer in his service, badi^vennn*
tice to the commanding officer in a n«tfkb
ing garrison, of auch a person' as BrecC S
art, a late rebel, a deserter, or a French i
saiy possabiy for raising recruits,
faaely come into that oonntry; I have only le
ebaerve on this occasion, that in fact it ia inGro->
diUe, that Breck Siewnrt himself, upon a bane
surmise, which was net true, that Glenure had,
given such notice to cokmel Crawfurd,
upon which no molestation tbilowed te 1
should have conceived or proeecuted a
hatred against Glcnnre; and tberdore the I
cense of that enmity must have beeitihe «
main ouairel or cause of oflence,
first taken up by the now pannel, i
adepled and csesejed by Breck in the nannar
that yon have heard.
And for the truth of this obmnaiiun, wv
have the authority of the pannel himself, wto
had ihe best opportunity to be tboroufhly aa«'
qeaimed wnh Allan Brock's sentiments; fart-
in the pannei's evasainaiion that hath I
yen, he says, •• That bow soon the 4n>*
\i heard of Gknnre^saauidcr.ii canwiMer
hi seyent Mere hed dene it, h»-
I BNckhedtaMhim.th«itheariii
whindjiiiamtegii
A. D. 1751.
[lOO
' froai Pranc€, upon
e'i trtnUneni of Lrficluers
» MIeriaff Willi Jobn Cameron
ttkmt to Loch id. That ihe de-
f<or tuipectio^ Atkfi Orecic
bfCftiiHC he left the country
Uikin^ tefeve o\ htm, m he
if ibe suiA Allan ivas guilty of
, lie belief PS it behored to be on
littwrbwic^ ^iv«n to the ten«nli
^ ArdtMd, auJ lie knovrs oo
^aiul» the eTidetice you
I 0f %k% estnirt of offeuce, such as
L «iere taken hy tt>c jintinel and
el( Stewart against the late Gle-
in which their resent-
I had been expressed and dis-
itthe moplh of Aprd last^
Iweot la Ediaburgh to obtain a
■jing the reinovings. And
ted to examine the evidence
! animoilties and tlireaten-
rlbnl execiitioD thereof by the
' Okoure, upon the rcry e?€
I or tb« 15th of May, when he
' 1 to the remofiog^ of the
ef he had, upon answers
ibHlofitiRpenption oOered by
>f«ftiae<>ordrsmtgR<'d ; whereby
t eflbrt^ to prt* r<iul those rcntjor-
t« tiis own authortfy or in-
» ItMitits of Ardshiel, had been
Apiril last, by the panners own
lo his own house from
I l!i€ order he hud obtained on
lioo, th»t the isame should he
1st or May of proceediog^ tQ
after which, lie caHed ihe
i. ihem notice whnt he had l»een
■d aeni them with his notary
\ lo (Jtetiure ; which wait ac-
I •!! the l(»t of Mfiy , as Charles
hath dejtofed. i
gth of May, Glenure re-
i^itomfrom l5dinbtirjfh, wbr-
t^make an answer to that
thm had been intimated to
at anawer, had g^it the same
Ml. I *r^v** out, in his
ing himsHf
^lunilaythe
It settle the
I estate, and
re the 15th.
lit is proved
II S*tew»rt of
in Glennre's
uniiy, (K near ni*ijfh-
I thc99 ai.'eoT«pani<d hy €b driest,
inert aon-. * V' Brcfk
to pri I lie ino-
» Ilia Uf) f\
was come from
Bilinbnrgb» with a warrant to remove Iti*
tenants ; to which Allan Breck said, That if
there was a warrant, tlier* wan no more to fm
said ; but that if he ii»d no warranl^ he wonM
not be allowed to remove them : and t!ie wit-
ness adds, that he heard, on 8unday the lOtti
of May, that Glenure was ^omg lo Fort-Wil-
liam \ ' and AlUn Ilreck lelt his bouse about
nine o'clock Monday morning^."
This is conlirmed hy Jatnes IStewart the
younger of Fasnacloicb, who adds, *' Thai
ilreck was then io his French dress, and that,
when he went away on Monday the llih, about
nine in the mornings, he told the family that be
wifi ^oiag; to leare the country soon, but vmM
see them ag^Qin at Fasnacloich before he went
away : and further says, that, on Sunday the
10th, he heard, being in compony with Allan
Breck, that Glenure bad fot an order from
Kdinbur^h to retDore the tenants, and was gotie
to Fort-William.*'
From FBtmaloich, Allan Breck come directly
the same ihy to the panners house at Atrdiani,
where, soon after, he put off his French clothes,
and put on the block or dark-cidoureil short
coal heloflg^in^ to the panncl, with t»ilver buttons,
with a bonnet and Irowser^, l>eingf, as several of
the panners serrants haire de|jo^d, the second
time Ihey ever saw him in that dress ; the only
former lime having been, when Breck went in
these clothes for some days to Rsnnoch in
April preceding, whilst the pannel was a I Edin-
bur^i.
Ao«l now the paonel himself hath declared,
•• T^ttt he Wfi* infrtrmed on Blonday the 11th
of May, by his sou Charles, Allan Breck, and ,
Fasnacfofcb's daughter, that they heard Gk*-
ntire was to ^o to Locbaber that day; and that
one or other of them told him, that Gknore
was to refnove tlie tenants of Ardsbiel.*'
By the communication of this intelligence,
it appeared, that the matter in dispute was com-
ing^ to a crisis : the laborious efforts made by
the panoel, in going to Edinburgh, of his own^
aeoordf to get a stop put to the removing, be
now saw were rendered inelTectnal, by ineamr
of Qlen lire's bavins^ gone ihithrr alter him :
and it is p res um edible from the facts that pre-
ceded, andthst followetl this day, thnt (his was
the time when the patrnel antf Brpck, at bis
own house, concerted* that Glenure should be
cut off by thp hands of Breck, upon his return
from Fort* WilHam into that country of Appio ;
and, as it appeitra from the evidence, that the
pannel at this time was low in caflb, tite facta
tltat hare been pro red serve to evince, or to
render ii further pi e^iumeable, that at this time
it was concerted betrnjct the panoel and Breck,
that the latter, as soon as hi« work wss door,
should rt?t!rc to the depart of Koalisnacoan, and
iher*^ wait, till either the paonel setit him a
supply of mnncv ^ ' him off, or catiseil*
the money to b* by his friend and
rorrrspnndent, VViMiuit. .i^wart, merekaol ill
Marvl«ur'j;-h.
It i& triK', that fur some houn of this MoQ*
dny the IHh^ tbt; [lannel went from bisowa
191]
25 GEORGE IL
house, upon a menage from BIr. Campbell of
Airds ; but he returoed home in the eYening ;
•ad in the dispositioD that both he and Brack
Stewart had long been in towards G tenure,
which was now more inflamed by this fresh
intelligence tJtey had receiTed, that Gleoara
bad. got the better of them at law, and was
about to proceed in the remofings, a very short
consultation betwixt them might serve to make
all this concert ; the evidence of which arises
from the ensuing facts, joined with those pre-
ceding this 11th of May.
For it hath been proved, that on the morning
of Tuesday the 12th Allan Breck set out from
the pannel's house, dressed in his short clothes,
and went directly to the house belonging to
Stewart of nallachelish, adjoining^ to the ferry
of that name, upon the road b^ which Glennre
was to come from Fort Willuim into Appin ;
and there Breck met his frienil Stewart the
younger of Fasnacloich, who hath deposed,
•< lliat he took notice to Allan Breck, that he
had changed bis dress ; who answered, That
he did it because the day was warm :" and
adds, *< That the deponent was informed at
Ballachelish, in compiany with Allan Breck,
that Glenure was gone to Fort William."
The same day Allan Breck went, accompa-
nied by Fasnacloich the younger, to the house
of Macdonald of Glenco, where his mother-in-
law, the pannel, and Ardshiel's sister, also lived;
and from thence, after staging about an hour,
went a-cross llie terry to the house of Cameron
of Callart, where another sister of the pannel
and of Ardshiel lives, and where he lodged all
thatni{rht; and next day, being Wednesday
the 13th, came back, after calling again by the
way at Glenco*s house of Camocli to Balla-
chelish, where he remained the night following.
And now, gentlemen, we are come to the
fatal day, which was Thursday the 14th of
May last, of which, and the days immediately
following, the various events and incidents that
have been proved before you, merit your par-
ticular attention, as I endeavour to put you in
mind of them, as nearly as possible in their
order.
On the morning of this Thursday the 1-Uh,
about 7 or 8, as John Beg Maccoll, the pan-
ner.s servant, hath deposed, " The pannel sent
him off with a letter to Charles Stewart, notary
public at Maryburgh, and told the deponent,
that the letler was to make, or cause the said
Charles Stewart come to the country of Appin,
to protest against Glenure, in case he had not
a sutficient warrant to remove the tenants of
Ardshiel ;— and also told the de|ionent, he was
to get some money from William Stewaft,
merchant at Maryburgh, to pay four milk cows
that were bought for him in the country ; and
that if the money was not sent, he would not
get the cows ; and that the pannel desired the
deponent to make all possible dispatch : — that
accordin)<ly he made all the dispatch he could to
Fort Willium, where he arrived about IS o'clock,
and delivered the pannel's letter to William
Htewart, merchant ; who told him, that Charles
Trial of James Stewart,
Stewart, the notary, was not at home ; bolthat
there was a notary along with GleDare« wko
would serve the pannel as well as Glennre;
and further toU the deponent, that he, the said
William, had wrote to the pannel in the mon*
ing ; that the said William did not gire hiB
any money, but said, he wonld send aorfails
for the cattle."
The reason whv he got no money at thb
time, is exphiined by William Stewart himwH
%rlio deposes, '* That he gave no annrer ii
writing, and thinks he did not ffive any toW
answer, if it was not, that he oid him tall hm
master, that he was not in cash, which (be nys)
was the case."
The letter itself, sent from the pannel Ivy thii
witness, hath been prodnced, and proved neAn
you ; and the postscript of it is in these wwdi,
which I will now repeat, though they are ■■•
serted in the libel : ** As I have no tiUM Is
write to William, let him send down immediate*
Iv 8/. sterling, to pay four milk cowa 1 boagkl
for his use at Ardttiiel." — ^The pannd OMit
have had a very pressing use for money, win
he was thus urging the navment of Um prim
before the buyer received the cattle; and let it
be observed, that this fint expre»
this demand of money from William SlewM^
was dispatched by the pannel on the minriiB|
of the day on which the murder happcMi ai
the evening.
Again, you are here to observe the rminiiiw
betwixt the pannel and this William Stawttf
Marybui^^h, who appears, by the letter ivyeh
he mentioned to the messenger as having ban
sent by him that morning to the fmnnd, Is
have entered with great zeal into the nanaah
scheme for opposing the removing ot the lit
nants ; for that letter also hath been jfnmi
before yon, and contains these words : <* I iai
Glenure has a mind to eject the tenants ; bH
they ought to be deaf to it, and, ataUririBi^
keep possession, as they are in good hndi^
and it must end in exchequer ; ao that I kg
tbey keep possession : as there will be ni
troops, thev ought to repel force by fbroa^ aad
take their hazard of the consequenoe, aa it SM
be no more than violent profits."
About noon on this Thursday the 14lh»ii
Ballachelish elder hath deposed, *' Hia gMt
Allan Breck went out with a fishing-rod nlai
hand, and was fishing in a burn near the dqpa«
neut's house ; but he did not see him take any i
that he did not take leave of the depoocol, nd
did not return, and he knows nothing of hni
since."
Archibald Macinnish, the ferry-man at Balla-
chelish, deposes, «' That, after mid -day upSA
Thursday the 14th of May hist, as the depe-
ncut was sitting near the said ferry with aati
ther man, Allan Breck came behind him, whL
iHwsted (oi: hemmed,) and, upon the depOMal^
looking about, desired him to come to hia^
which the de|K>ncnt did^ and the said Allan ah
ijuised of him, if Glenure had croiMd tha frv
from Lochaber to Appin ? The depoaant I
him he was sure he bad not: that Wfmt,^
►t tway toward* tbe big^h-
m dun -coloured big coat, oiid
rixf, Antl further dcftoseSf
larr WB« e3rp»^cted hack upnn tlip
y. Mid tbe dejiotient was sure be
ibe TUursilay, as i I was currently
In lli« coiitiiry, be was to \m\e a
f villi iciiiie tfenilemen at Kiniullme
I » ursday nigbt/*
ISirfy*t)it , upportunity to le&rn
m llie G4iutiii'^ ; aD«l thai his in«
tlitc last article was just con-
Ibe mations of Gtenure ; and that tbe
^U knowTi^ is furiber proved by
icbf clt.n ' ' u rat Kintalline,
"i I Tuesday the
Hujf, CU e to the dcpo-
il Im rni*- Mipany were to
I* .* i i"j then neict, and
hm miebt be prepared for enter -
■^UD: thai be arcr»rili(kjb;!y made pro«
^^Mli ; that be toll titafGl^nore uas
I^K kayiiL< ilmi nighty and that the
(i(|liiMflKKul knew oCiL'*
cmdiB^ly It bntii bei?n proved by the
wrim «rer« in con^p.iny vrilb fJlenure,
CJabidMI, wbo attinded bim n^ a clerk
ft Jmii Mackenzie bis servant, DonaM
', mtn of the nbenff's officers, that
«Bd they crossed tbe terry td' Balla-
lietwtxt four and tite in the afternoon
ky t ^^U f^^^'f crossing the f'f rry, Bnt-
I Mtr walketl nlon^ with Glenure
dfft mile, till they canie to tbe skirta of
laf Lrtierttiore, where Glenure, pur-
m jyornev ifiroui^rh tiie wcmjiI, uhich
Um M$cr liill on bta left hand,
Etth«H : 'Ji the body Yvitb tivo
iBtred bf bind his back, and came
jr ; of wbicb %vounds be died upon
t fir o'cltick Vbat same erenini^.
jcaaary for me to repeat tbe se-
riL *> related by bis at*
(» and ornd murder
K^aqi«ij utea ny Allau Breek 8tewart,
tmisfttil bis wisheM to meet Glenure
iMOl p^*oe, it rouitt be conlesaed with
Itlll4i nmte met biio, or rather, iu a
M«ranlljr inaAocr, lay in wait b>r bim^
m oo^w^tmni indeed for that wicked
Ibf eaecniliutr himself wbikt be went
I, and iM i.iat from a proper
rvlreat, r . ujuld be over, until
pul IU A condition t/» leave tbe
; lor wbicb ti supply of money was
«f Ibe murder was quickly broui;bt
of tli« panned by John Ma«;-
i of the deceaseil, who went
'v -)f Mr. Camjihefl of
<>' pontiet seeing bim
. utter was ? Ami the
-> riiailfr was killed,
-<l»i, expre9«ed ^reat
>ncd, at what rmj^ht
. ' Uoublf. riud prayed
in ft*
tutttnf I
I 0t ««bii
And John Beg- Maccoll, tbe pannert
▼ant, wbo had been sent express that morning
to Fort' William, and who was pres^ent at this
circumstance, relates it in these words : *" That
he was hardly an hour returned borne, when
Glenure's servant came to the door, catling for
the pannel ; that tlie pannel went immediately
to the door, and asked tbe servant u bat was
the matter? and what news be had ? To whicli
the servant replieil, The worst 1 ever bad ; my
master is murdered in the wood of Liettermore :
upon which the pannel said^ Lord bless me I
was be shot ? To which the servant answered.
Thai be was i^hot, and said, tbe pannel ought
to go and take care of bis corpse: that the aer-
vant immediately went ofl'; but neither the
pannel, nor any of hia family, went near the
corpse; and the pannel said, that as be and
Gteiinre were not in good terms, nud some of
the people that were to meet Glenure bad arras,
be did not care to ^o near ibem, not knowing
what mi^\ii bajipeo And further said, that
this was a dreadful accident, and be w as afraid
would bring trouble on tbe cotmli'y ; add ap«
pear^l to be "sorry for what bad happened.**
Here it is evident, that as soon as the deed
was over, the pannel's first rcilection, from
whatever cause that sprung, was an appreheo^
hion, that it might bring himself into trouble or
dani^er.
Tiiat same night, at tbe panners houae«
orders were given to the servants by bis wife,
to bide all tbe arms about tbe hoo^e ; ami ac*
cording I y John Beg- IVfaccoll and Duyatd Mac^
aoll hid a large Spanish gun, that used to stand
in the brew- house, and four ssvords. Btil
here it is remarkable, that none of tbe servants
saw that night the other shorter ^un, but of a
larger bore, asyouhare seen, both having been
produced, and proied before you; concerning
which Duga Id Maccoll deposes, '^ That Allan
Stewart, son to tbe pannel, told him and hia
teliow-servaat, that he him<^elf hud concealed
the lesHser (or shorter) gun, that used to stand at
the end of the girnel in the barn, under tbe said
gimel, where he thought it would be safe/*
Thiit same night, and after tbe murder was
over, two witnesses have deposed, that ibey
saw Allan Br^ ck Stewart on tli« hill above tbe
bouse of Ballachelish, where be had loflged
the night , be I ore, aud not far front the spot
where tbe murder happened. These were
Katharine Mackmnitib, servant to Baltacbeli^b,
a wiincsa called by the punnel, who aaya,
*' That in the evening of the 14th of May, »be
saw Allan Breck 8tewarl at la goal-house in
tbe moor of Ballachelisb, after Glenure was
{filled ; and that Allan Breck then ask'^d her,
wild! was tbe occasion of the stir in the lowii?
and that she told hiin, Glenure was murdfred:
and further asked her, who mi^rbi have com-
tnitte<l the murder P and ebe told him, slie did
not ku.iw : and farther saya, that abe told
iMnald Stewart, (who is nephew aod»ou-ju-
law to Ballacbehfih) where she saw Allan
Breck ; but that she did not Icll bim to go ta
the said Allan, nor did be d«irc ber/»
U
196]
25 GEORGE IL
Trial qfJam^ Sietvarit
[196
And lliis Donald Stewart deposes, « That
vpoD the ereoiDg of Tliuradaj the 14th of
jilay, about night-fall, Katharine Mackinnish
called him out uf Ballacheliab'a house, and in-
formed him, that Allan Breck wanteil him, and
that h^ was a little above the house on the brae
(or hill): that the deponent went up the brae,
and met Allan Breck, who was then dressed in
a prreat coat, and a dark short coat under it,
with white metal buttons: the deponent told
biin uf the murder, and aaid. It could not be
but that he, Allan Breck, was about it: to
irbich Allan Breck answered. That he heard
of the murder, but had no hand in it : to which
the deponent replied. He did not belie?e him : —
that tne said Allan Breck further said, he be-
]ie?ed he would be suspected of tlie murder;
and upon that account, and as he waa a deserter
Ibrmerly from the army, it was necessary for
Jiim to Iea?e the kingdom."
The events of Friday the 15th of May last,
immediately following the murder committed
00 the evening of Thursday, do no less merit
your attention, and these begin ?ery early on
that day ; for John Maodonald of Glenco de*
poses, " That on Friday the l.^tli of May
last, the said Allan Breck Stewart came again
to the deponent's house at Camock, at three
or four o'clock in tbe morning, and knocked at
a window when the family were all in bed ;
that tbe deponent went to the door of bis house,
and there saw Allan Breck, who gave him the
first notice he had of Glenure's being mur-
dered the evening before in the wood ot^^etter-
more ; and told him, that he was to leave the
country, and to go the Moor- road leading to
liannoch ; and camo to take leave ef the de-
ponent and his step- mother, who is a aister
of Ardshicl's ; and that the deponent did not
ask Allan Breck any questions about the said
murder."
And with Gtonco concurs Isobel Steirart his
step -mother, who also got up, and went out
with her step-son, to receive Allan Breck'a
nocturnal visit at the door : and she says, *< That
she asked him, what news up the country ?
To which he answered, a good deal of news ;
that Glenurc was killed, or shot the evening
before, in tlie wood of Lettcrmore : that lie was
come to take farcwel of the deponent ; for he
was to leave the country : and that she asked
bim no more questions abunt the murder,
though she askeii hiui to come into the house ;
but he answered, he would not slay.'
U|M)nthis incident it is an obvious reflection,
that neither the pannel's sister, the lady Glenco,
iior her s^ui, judged it necessary to ask any
question of Allan Breck al>out the murder,
M'hich he now related to them, as what had
happened a tew hours before he came thus uu-
aeasonably and abruptly to take leave : these
circumstances superseded the question as su-
|ierfluou8, who it was that did itP
About ten o'clock in tbe forenoon of this
lame Friday thr 15tb, Donald Stewart, the ne-
phew and sun-in- taw of Ballachelish, deposes,
*' That be oict James Stewart, the pannel, in
Duror, not far from his own bouse ; and that,
u(ioo the depooent'a regretting that sacb an
accident, as Glenure's murder, should happen
in the country ; the pannel joined with bim and
said, that he .was informed, that one leijeanl
More, alias John Cameron, had been threaten*
ing harm to Glenure in France ; but did not
inform tbe deponent who told him so : and for>
tlier deposes, that, to his knowledge, serjeant
More has not been in Appin these ten yean
past."
Now this very Donald Stewart, who ii a
friend and neighbour of the pannd's, had, as
you have heard, the night berore said to Allan
Breck hiouelf, that he was surely the murderer,
which was the sense and opinion of the whole
country ; and yet here it is very remarkable,
that, when the thing was recent, and as some-
bmly must have doue it who was likely to be
capable of such an enormicv, this pannel, for
want of a belter shift, is endeavouring to start
a very improbable hypothesis, and to threw
the suspicion on this serjeant More Cameroni
which, as it was destitute of any foundatioB in
truth, gained no sort of credit or belief; and
YOU are to consider, gentlomeo, if it could
be started by the pannel, at this time, for any
other purpose than to divert the attention and
the suspicions of mankind from his friend
Allan Breck.
The same day about twelve o'clock, Alex-
ander Stewart, travelling packman in Appin,
and first cousin to Allan Breck, deposes, *' That
the pannel desired him to go to Fort William to
William Stewart, merchant there, and get fron
him five pounds, or five guineas ; and tolil the
depouent, that his friend Allan Breck was
about to leave the countrr, as there were troopa
coming into it, and that he might be suspected
of Glenure's murder ; and that it was ineum*
bent upon him, the pannel, to supply the said
Allan Breck with money ; and the pannel de-
sired the deponent to tell the said William'
Stewart, that he must find him money, tliongli
he should borrow it from twenty purses ; and
aUo to tell him to give credit in live pounds
sterling to John Breck MaccoU, bouman to
Appin at Koalisnacoau, in case he came to de-
mand such a sum : that in consequence of ibie
mpssage, he went to Fort-William, where he
arrived early in the evening, met William Stew-
art, dclivci-ed his message ; that William
Stewart told iiim, he had not money, but that
next morning he would give him his errand."
William Stc» art himself, who received this
message, deposfs, ** That it was about ten
o'clock forenoon, or betwixt ten and twelve,
that be saw the packman at Fort-William ;
and his wile swears it was about mid-day ;"
and if they are both in the right, the packman
himself must have been mistaken, when he says,
thst he was dispatched by the pannel from An-
charn, so late as about noon tliat day ; of which
circumstance 1 shall hereafter have occasion to
take some notice.
William Stewart further deposee, «• That, tt
tbui time, he asked the packmtni if he hid
for Murder.
eome by the road where that unlucky murder
jftfCreoure had happened? and the packman
I loJil him he did ; but the deponent did not
* iilc hrm who wts suspected tor tt, nor had any
IfUbircmirerutioD on thai subject^ there bein'if
|Bmst inmny people pre^nt in the shop at the
^^^tf* But tnis apology nottf itU«tandin£|^, (for
^^Bbe pimple in the shop at Mar^burgU wouM
^Itftheeo ready to liatcn to news about audi
imoQ etent) this William Stewart,
flti well acquainted with the cause ot
bett%f%i the pannel and Glenure,
tittle ioquisitive on this ocduioti of rt>
message from the puniiel thedny after
niarder happened, seems to he uo otherwise
iMOOoCabte, than by the supposition that he
Imw so wdl %iho were GleuufL'^a enemies ai
tbttttime, that it was improper or unueces-wiry
lor him to be inquisitive about ihe authors of
hii murder.
Dufnld Maccoll^ the panntl'si servnnt, de-
|0M5, *» That about four o'clock in the iifter-
MQHof thi« Friday the 15th of May tutt, thw
Cael desireil the ilepunent to carry flie iirm«
n tlt« Irouflea (at Aucliaru)| and hide thc-m
in the moor; that accordingly the depoiieni,
ti»4 John Bei; i^laccidl, took the tiiresaid lar^e
|fa& from the hack of tlie sliei^p-hou^e under
lk thatehf and the said four twuids from under
lh« thatch of the barn, and fiiund the gun that
uffd to stand in the barn under the prne!,
ibre the said AiUn Stewart* the fiannerii son,
ntd he hid it, and carried iheui to i\i^ iiuior,
Ibd bid them iu the hole of a rock aljove the
fttlitiMMS: that the large or Spatii&h g[uii, that
iM to the brew- house, was charged with
fowtler and stnall drops ; and that there w^»
nribot ja the amall or lesser gun that usefl to
ttaoit at the end of the g^irnel in the barn ;
tiilt they overtook Katharine Maccoll, lervant
to tliep«nnel, in the brae above the bouse of
iacham, with a pock or sack» anrt suiTietliinf^
in it| under her arm. The deponent atikiHl her
wbitihehad got in the sack ? to which she
*Mwere<|, that it was Allan Breck's clothes,
tod that she was goin^ to hide them ; and the
dtpQoeot, and the said John Beg Maecoll,
•w ber hide the sack in which the said clothes
This is confirmed by the oath of John Befif
Hiccofl, the other serraut, who says, " They
iire desired by the pannel's wife to hide the
»!• belter" (i. e. thsti they had done the
MfiN before) ; and by the oath of Katharine
MtQOollt who says, " That, upon the evening
tftfui Friday, her mistress, the pannePs wife^
fi op a bUie coat and red waiskM>at, with
ling' else into a sack, and delivered them
tdepooeoti desiring her to hide them some
ftritbout: that her mistress did not tell the
)t to whom the clothes belmnred, hut
Ibe deponent thought the said coat and
were Allan Breck's : and she adds,
time in summer last^ atter the above
1 1 8uloiuou Bane MaccotI, servant to the
&I, told the depone ntf thai the said Mrs.
tf spouse to the panoeJi desired her to
A* D. 175«-
[196
conceal what she knew about the above clothet,
in case she should be asked or examined about
them.^»
On Satarday the 16th of May. as William
Ste^vart's wife hath deposed, ** »hc being" soh-
citoits to have the cows» bousfht for her bus-
baud's use hy the pannelf towards stocking a
farm they bad taken, g^ave the jiackujan, hit
messenger, three i^uineas out of ber purses
and the packman defioses, that he got the
money from Mrs. Stewart, after he had seen
William Slewan himself, on this Saturday the
16th » who told htm lie would let him go imme-
diately ; and that, havtnjf cr*'t the three
guineas, he forth" illi returned to Aucharu, and
arrived iliere in the evening, near to which
place he found the panne I a prisoner ; but the
panncl's wife, and the deponent, having had
access to converse with the panuel apart, ihc
flannel ajiked the deponent, what ntoney he had
brought from Fort- William ? and, upon the
ileponent's telling him that he had brought
three guineas, the pannel pulleil a greeu purse
out of his pocket, out of which he look two
guineas, and gave them to his wife, who deli-
vered them iuimediulely to the deponent ; and
the pannel desired that the five guineas tthould
he sent to that unhnppy man, ittesauing Altaa
Breck, to see if he cuuld make liis escape ;
and pitehetl upon the deponent, as a person
that should go with the mtmey, — That soon
after the psnnel was carried oil by a parly to
Fort-WiTliam; and Mrs. Stewart told the de-
poTjent, that he would Hud Alluii Breck in
Koalisnacoan ; and, sometime after u^ht-fall,
the deponent got his supiier at Aucharu, and
then the panuel's wife carried the deponent to
Ihe back of the brew-house, where there lay a
sarkj out of which the s^id Mrs. Slewurt took
a blue coat, red waistcoat, black breeches, a
hat at^l some shirts, all which she delivered to
the deponent, ordering him to go with the
clothes and money to Koalisnaeoan imine-
difltely, and deliver them to John Breck Mac-
coll, bouman to Appin, if he did not meet Allan
Breck himself; but directed the deponent not
10 carry the clothes to the baumau's house, lest
any body should see them ; that the depoueni
accordingly set out, that same night, foi- Koa-
litnacoan.^^
In the mean while, as John Breck MaccolT^
boumati to Appin, halh deposed* *• Upon the
afternoon ^K this Saturday the 16th of May, as
the deponent was in a Isr-hush (or thicket) near
Aldavoim, at the foot of the heugh (or deep
holloiv place) of Corrynakeigh in K«mhsna»
coao, he heard a whistle, and, upon Wkingupi
saw Allan Breck at a little di^itauce, beckoning
to the deponent to come towards him ; which
he did: that, after salutations, the deponent
lotd him, he was afraid it was no good action
that occasioned his being in such a remote
place, and at such a distance from any com*
mon road ; that Allan Breck answered, The
place was not very far from a road : that the
deponent, having heard the day before of Gle-
Dure'd murder^ charged Allan Breck with
199] 25 GEORGE II.
being goilty of it: that Allan Breck asked tbe
deponent, what he had heard about the mur-
der? That the deponent answered, That he
had seen no person from the strath (or Tale) of
Appin ; but that two poor women, that had
come up Glenco, were telling that Glennre was
murdered Thursday evening in the wood of
Lettermore; and that two people were seen
going from the place where he was murdered ;
and that he, Allan Breck, was said to be one
of them.
** That Allan Breck answered, he had no
concern in it ; and that, if his information was
right, there was but one person about the mur-
der ; and that, as he was idle in tbe country,
he was sure he would be suspected of it ; but
that would give him little concern, if he had
not been a deserter, which would l»ear harder
upon him, in case he was apprehended, than
any thing that could be proved against him
about the murder.
" That the deponent did not believe him,
when hu said he had no hand in the murder of
Gleiiure ; and, not caring to press it much
upon him, told him, that, as ne was already
8uspe<*teti. it was dan^rous to ha?e any inter-
courtie with him ; and pressed him to leave the
J»lace, lest he should bring the deponent and his
amily to trouble.
'* That Allan Breck said, he did not doubt
but that the family of Ardshiel would be sus-
pected of the murder, and it was probable the
pannel, and Allan Stewart his son, might be
taken into custody about it; and that he,
Allan Breck, was afraid Allan Stewart the pan-
nel's son's toujy^ue was not so good as hit
father's ; by which words the deponent under-
stood, that Allan was easier intrapped than tbe
pannel.
<* And, the deponbnt still insisting upon
Allan Brock's leavmg that ncighbourhM>d, the
said Allan Breck told him, he would not leave
the town (as the witness expresses it, or the
{dace) for right days, imless some necessaries
le expected came to him ; and told the depo-
nent, unless some money came for him berore
next morning, be, the deponent, must go to
Fort- William with a letter; that, though the
deponent refused to go, Allan Breck looked
about among the trees, and finding a wood-
pigeon's quill, made a pen of it, and having
made ink of Kome povider he took out of a
po\«(ler-horn that was in his pocket, he wrote a
fetter, whirh he told the deponent he must de-
liver to William Stewart, merchant at Mary-
burgh.
<* And, noon the deponent's telling him,
that he would by no means undertake that, as
he was informed that every body that went to
Fort- William %vas searched, Allan Breck said,
it was an easy matter to hide a letter ; the de-
ponent answered. If he was catched upon tbe
streets what would he do with it? Allan Breck
told him, that the letter must not be found
upon him by any means, and, if he was catched
with the letter, be must eat it before it was
found; that the deponcot then told the said
Trial of James Stea>arif
[800
ne mei Aiian jarecK ai luis ume, veiny
'k short coat and trowsers lying apoa
e, and produced to him, and provea !»
en the property of the pannel.
Allan Breck, that he did not know bathe woakl
be obliged to go for some beer next dajr to
Fort-William, m which case he might poiaibly
carry the letter ; but at the same time told the
said Allan Breck, that, if he shoukl be taken
up, he would tell all he knew about him.
«« That the said Allan Breck desired tbe de*
ponent to go to Callart, or Glenco's house, ftr
a peck of meal to him ; which the depoiieek
refused, and at parting, the said Allan Breck
told the deponent, he would see him next day.**
The bouman further deposes to the dress a
which he met Allan Breck at this time, being
the black
tbe table,
have been the property ot the pannel
Early upon Sunday morning, the 17tb of
May last, as both the packman and the boB-
man have deposed, they met near to tbe boa-
man's house, whereof the latter at first denied
to the packman, that he had seen Allan Biecki
and u|>on the other's being surprized at thiii
and saying, he was informed he wonld meet
Allan Breck there, and had brought some ne-
cessaries for him ; and the bouman enquiring
what he had brought? tbe packman answeraC
dwe guineas and some clothes; and told, that
he had a great deal of trouble in getting the
money ; that he had been sent by the paniMl
to William Stewart at Fort Wdliam, froai
whose wife he got three guineas, and that Ibi
pannel or his w ife gave him the other two goh
neas ; and that the panncrs wife gave hisB the
clothes, and informed him that Allan Brack
was to meet him at that place ; wberettpea
the bouman owned to the packman, that he
bad seen Breck the day before, and that he
expected these things, and directed tbe pack-
man how he might find Breck, if he would
go to a hill he pointed out to him, near to the
eugh of Gorrynakeigh, and whistle once er
twice, be believed Breck wonld come to kia:
but this the packman declined, telling, that ha
had slept none " * '' ^ "
moch fatigued
bouman the five gumeas,
the clothes at some distance, and would
them to the bouman when he was going away ;
and then went to sleep in the bouman's boaaet ,
After the packman bad slept some hours hera»
he dined with the bouman his landlord, and
tlod him, ** That the pannel, and Allan his
son, were made prisoners the evening beliira^
and sent to Fort William ; and, upcm tbe bon-
man's enquiring who was suspected of Glenure^
munler ? the packman answereil, that it was
Allan Breck ; and that it was likel v the pan-
nel, and Allan his son, would stand the firrt
trial for it." And aliout noon this Sunday the
packman went away, without seeing his con-
sin Breck, aller havmg pointed out to the bon<
man a fir-tree, at the root of which he had bid
Allan Block's clothes.
The bouman further deposes, (and indeed
every word of his testimony meriu yonr afr*
tention, and was given in a most lively, natnnl,
and ccedibie manner) <*That, after be'kii
ine pacaman ueciioeu, wiiing, vumt am
I none for two nights, and was wmj
tigned ; and upon this delivered to tbe
the five guineas, and told, he had left
bea at some distance, and would aheiv
fir Mtitdtr*
tell it|ioo ihm mme SnmUy «veiiifi^,
^'■^"rking «l ihe M^ortow, and
t>« A Han Brcckf he got ti\K
I iiK i^liiit, and stivv Alkn
ml i:e (torn tlie house;
^ 1 comiag up to bim,
him, if any message had cnme
Tfcir depoopnt tuld bim, ihut his
MQ bad i!Oiue «^iUi <i(e guineas and
cMkea: Ibat Athui Breck coiiiplaiittid
ir»« bill UlUe mooey, biH hoped ii would
tbnt ihe de|K)i»eiit told the
I wft'jai'rttivl be would stJirve
4|if and that he ^^as nut able
bim : 4iiut AlUn Breck ans^eri^d, lie
oeouMio for victuals, bui vvanted a
TCTf tmieli ; upon nhicb the depooent
in bis hotise, Aud carried out Home
ftociie milk and water in a no^cin,
fve guioeaa, and i^ve boih to Allan ^
lb«t Ihe deponent then went tor ihe
«kkli he alco gave the said Allan
oonsi&ted of a blue long coat,
black breecbefl, a bat, lome
m4 iihtrt9«
ibe deponeiit told Ihe said Allan
llMlihe paiinclaad ht« son Allan were
i Bcoiiunt o» Glenure's murder ;
Breck answered, That that was
lie eipecied \ bm it would not
i» tti there could be no proof against
lot cvfrtaaed aotne appreuension* Icsl
ISie«v«n, ton to the panoel, might be be-
~ by liaa nwd ioogue.
^* Tb*t tbe dcpotieut desired the taid Allan,
mm ibM be bad gnt all the ncr^iti^aries he ex-
fisltd, li> CO about hilt business; and the
mi Atks Bmk promised to ilo so, bui told
Ik difJMitaL, that be must meet hitu, the
■il AAm Breck, uexl morning; that he
mA idivi^r ibe deponent Ihe clothes he
Iha md Mian Breck had then on, to wit, the
Ibsk dkn e<»l and trun ' mi lo tbe dc-
MfMis tbe clerk '» ba< r lo be kept
tf Ifcf 4tpmi<til, till he titintritM thetii to the
fmmi\ miU t thai tbe depoaent promiseil to
■fUdie nM Allan Breck next morning, but
i4 ist Kc biirt ; and when the dtiponeitt went
19 Mit moming, he found the* said short
UldlCMt,lrowmrr>«, and the noggin in which he
^■i cmnmk tbe drink lo Allan Breck, lying
^^Klte IB tbe pbice where the deponent
H^Pl^ «ilU AlUii Breck Itie night before;
tillbM br b»lh aol ieeu Ihe said Allan Breck
On Sliialay the 18ib of May, Allan Breck
mirbiiiw, as' he bad praf>oKed« by a very un-
N^aiBitJ ff'^'''. I i' I moor<^, and orer
lk» tnwiitatn- . and came thut
iMtilftyiot! i tii^n Dig Carneroa
11 ilimnrti^ I vub whom be retnain-
I4AII Wwdm^MUy uuig. The uncle hath
mid, ** Hm |ir««ied him earnestly to make a
cbao IffCBSlf Mid Irll btin ill Uf Utiew of
Cfbftisri!*! itiiirdm'. Tu lowered
•nil i« o«tb| Tbat hi bift ui«>Dure,
I tht oQolf hovrcrer frcf|uenl1y
A, D. 1752-
[208
repeat^ bis tnstanceit, till Breck became ftngry^
and ihp iioele deaisitNl further eoqiiiry/'
Four days after Breck left bis iiocle** bonse.
that is, on the 2iMi o\ May, ** Ihe uncle haf«*
iDg ocesiioti to bF ourteeo miles from his own
House, (further down the country) and passing
k»V Ihe Kide of a wood, he heard a whistle from
tbe wiHid, and, l»okincr ah«>nt, saw Allan Breck,
who then told His uncle, iliat bis only fear was
l<« be appreht'udaK by the nalitary/as he bad
beea a des^-rter The uncle answered, Ue
was very sore tbe friends of Ihe deceased
would procure bim bis discharge, if be could
discover the murderer. And Breck replied.
That ihey were at this lime in such fury and
rage, tbiit be was very sure, were he appre*
bended, he would be hanged."
It is unnecessary that I should resume mi-
nutely what tbe other witnesses said, who
saw Breck Stewart in Rannoch or Athole,
when he passed tbroitgb that country at this
time ; bis appearances bespoke the situation
be was truly in, that of a malefactor study tog
10 conceal htniself, and making bis escape*,
1 1 is however material, that you should fur-
ther obberve, that after BrtfckStew^jrt bad thua
disappeared from the country of Appin, where
this murdrr was committed, every body in thai
country, and in thai of Hannocb^ through which
be retired , and in boib which he was well
known, and had relations, imputed lo him tbn
actual murder, and ti> no other person. You
have already beard, that Donald 8(ewarl» the
nephew of Balbcbelisb, charged him with it
t'j his face on ibe night of Thursday the 14lh,
when the blood *»f the deceased was'hardly yet
cold, as Ibe bouiuan did on Ihe Saturday lollow-
ing; and, un the Monday fiillowiug, Cameron
bis uncle disr<.?ereil the same belief. And 1 have
now lo adil upon this bead of tbe voice f>f tbe
coimtry, or ihe Jama viantr, thai Bjiliachelish
elder, who had been his landlord the night Iwj.
Ibri* the murder, says, ** That, Ihe morning
after Ihe murder was commititd, the deponent
really thoughi, that Allan Breck Klewart might
be the actor in this murder, because he did not
return to tbe deponeut again/' And Maciu-
nes, the ferry -man at BaUaciiel3sh,savs, **Tha|
he beard no liody suii|)ccicit Jor the murder of
fflenure, but the said ADsn Breck.** And
Jnmes Mann, change-keeper in Rannoch, says,
*' That, before Allan Breck came lo bis house
in Msy I ist, it was reported in that country,
that he was concerned la Glenure^s murder ;
and that be himself suspected him at tbe lime,
as be came unseasonably, aod was wanting
provisions/*
There are yet other eircumatances subse4|a«i)|
to the murder, and to the pannePs cnnimitmani
al Fort William, that deserve your considera-
tion with the rest of the evidence ; one of these
is deposed by Hugh Maclean, barber in Mary-
burgh, who says, **• That one day being called
by the pannel to shave him, be thinks upon a
l^lurday, the pannel asked bint, what news he
beard in the town ? The deponent answered,
That be^ the panpel, was to be CArried to Edin-
803J
25 GEORGE II.
Trial afJamu Slexart,
\m
bur^h on the Monday following ; whereupon
the pannel said, that was a matter that gave
him DO concern, and wished it had hapyiened
sooner ; and was afraid of nc Ihing but that his
servants mi^t be inticed to take money, and
turn ap;ainst him ; and desired the deponent, as
from him, to tell his serrants to say nothing*
but truth, to keep their minds to themselves,
and he wouM take care of them,* and accord-
ingly the deponent delivered the pannel's mes-
sage, in his own words, to two ot his servants,
who were then in separate custody in the same
Krisoii ; and that they were both of the name of
laccoll."
Again, gentlemen, you have heard read, and,
I dare say, with much regret, the examination
of the pannel's wife and daughter, taken before
the sheriff upon oath, wherein they say, **Tbat
Allau Breck Stewart came to the pannel's
bouse no Monday the 11th, in bis Frtnch dress
(that has been often described), and that he
went away next morning, after taking leave of
them, dressed in the same habit;" and yoa
have heard by what a cloud of witnesses it was
proved, that, from the evening of Monday the
11th, till the morning of Monday the 18th,
Allan Breck was seen in no other dress, than
the short coat and trowssrs belonging to the pan-
nel, now lying in coart ; and, bv the pannel's
own servants and the packman, it has been prov-
ed, that Breck's French clothes were, bv Mrs.
Stewart's order, put into a sack, and hid in the
moor near the pannel's house, from thence
brought back by the same servant maid, by order
of Mrs. Stewart, and by her delivered to the
packman, by him to be carried to Breck at Koa-
lisnacoan ; and that the maid -servant, who was
employed bv her mistress to hide these French
clothes, and to fetch them back again, was, by
a message from her, desired to conceal what she
knew alMot the clothes, in case she should be
asked or examined aboot them.
These, I think, gentlemen, are the most
material facts and circumstances that have been
proved before you, which I have resumed iu
the order of time as they banpened, with intent
to give you a just view of the case of the pan-
nel, whom you are now trying; and I am per-
suadtd, that the reflections which naturally
arise fn^m these facts, in respect of the ques-
tion before you, must have occurred to your-
selves, when you heard the evidence given, and
when I have again resumed it ; and therefore
roy observations to you upon the whole shall be
as few and as short as possible.
1 have admitted, that it is incumbent upon
roe in this trial, as against James Stewart, the
pannel, to make out, that Allan Breck Stewart
was guilty of the actual murder in question ;
and 1 apprehend, that is done to full conviction,
upon these considerations.
And, first of all, gentlemen, here has lieen a
very extraordinary and shocking murder, com-
mitted within the county or district of Appin,
in the most nortbem part of this county, of a
f See p. 148.
gentleman who had an estate and relations in
that neighbourbood ; a man of a fair cbaractor,
who was going about the duty of his office, ui
the king's and the public service, inteoding no
injustice to others, and apprehending no ham
to himself; for he and all his atteaunts were
unarmed ; and yet he is bereaved of bis life, not
by an open enemy, upon a declared or a snddcs
quarrel, but basely assassinated and shot be-
hind his back, by a person lying io wait aai
lurking among trees for that purpose.
This, gentlemen, is a very strange and slMNSk*
ing event ; and, as for every event there nnst
be a cause, somebody most have done it, and
upon some reason or temptation, such as it w»:
and this is not like a murder committed ou tbo
streets, or on the highways leading to a popn-
lous city, but in the comer of a county, wbsrS
the deceased was himself a gentleman of note,
and where every body of any note is known to
every iMdy: the deceased, therefore, mml
have had one or more enemies fit or capable^ sr
likely to have devised or perpetrated aoch aft
action ; and who these are, you have beett noir
for many hours enquiring.
And, upon the result of that inquiry, what
doubt can there be in the first place, that Breck
Stewart was the actor ? His character, and bis
situatioo as a deserter from the king's service^
and now actually listed in the French aervioe^
and in this country only as a sojourner, for a
viAt to his friends, rendered him the most Ukely
person then resident in that country, for being
guilty of such a thing; nay, so much the only
person likely that the pannel himself, wlwn lie
cast about for some other man on whom tbo
suspicion of thisjgruilt might be thrown, mentis**
ed only one seijeant More Cameron, who is of
a character and situation very similar to thatef
Allan Breck, but with this very material differ-
ence indeed, which rendered it impossiblo for
that solution of the question to pass, that Ser-
jeant More had not been seen in Appin for seve*
ral years past ; and surely the absent wandcnr
could not do it.
But, next, and more closely, the only known
quarrel that any body had with the ciecetsed,
was that of this pannel James Stewart, about
his own removing the last vear, and the ro«
moving of other tenants of Ardsbiel this ycar|
into which quarrel his former pupil or ward»
and his intimate friend Breck Stewart, bad
most vehemently entered, and discovered that
on several occasions; and that heconsiderad
it as a cause for deadly or mortal hatred, inso*
much thai the pannel himself hath declared,
«« That, if Allan was guilty of the murder, be
believes it behoved to be on account of the dio-
tiirbance given to the tenants on the estate ef
Ardsbiel ; and knows no other cause."
And more closely still, ^ou have heard the
evidence of what passed immediately befbrs^
and after this muroBr, of the behaviour and ae^
tions of this Breck Stewart, who had fbroMriy
disphiyed his hatred to the deceased, ftr tlHS
veiy cause, frivolous and oiQUSt as it wae« Om
the 10th of May.alFanmdoicb, witkis eaili
fm Murder.
Gleotiro-« hous«, he gets iotelHgence of
;re^« molioos, a ad design « to proceed in
*ng tbe teomnts oj Ardsliid, when he
return from Fori-WiUiaro. On Mon-
Jth be cornet to the ^nnel's bouse,
J«yi aside his French dress, and jiuis
i tmaatry dre» beloDging to the [^Qtid;
mtliimine babU oext day, sets out to Bal-
'' ' b^rd by the ferry ot er which the de-
WAS to return ; from thence be goes to
ftistera of the panovl^s in tbe neigb-
I he returofi to iiallachetish on Wed-
remaitis there that night, and till
III next day^ when be lakes a tithing*
hii hand, a fit pretext for going out
1 for staying iome lime ; but, soon
fiabiog'rod was laid aside^ and he
of bis real game ; he calls aside
n, and eoquirei if G I enure had yet
the ferry^ and beinjf asaured be was not,
iM otr» and was never again seen about
it ferry, or tbe bouse of Ballacbebfib ; but a
hours after, that same niii^hl, and when the
bad been committed, be i a seen by
Mackionish, ihe in a id servant of
iib, at tbe eroal bouse in ibe moor of
liab ! and if Donald i^ieivurt «paaki
there siho he saw liiin, and charged bim
Willi the niunler. Here was iben the deserter*
nan a foreign soldier, and nne declared morlat
aooiy of tbe deceased, enquiring for the
^tttuvd a tittle before be passed the ferry ;
iij,«aaik afWr tbe murder, fuuud in llie bill,
ttVlDtlio apot where it happened, and adjoin*
iac to the house where he bad lodged the nii^bt
hum^i but to which be never returned ; but,
toMeail of that, wanders in the fields; beats up
Gfeaco and bis mother betwixt three and four
b the moniing ; leli^ tbem Glenure was mur-
fa«d,and be was going abroad ; takes leave of
Ibtm St the floor; retires from thence to a deu
tvidesarty tlie heugh of Corryoakeigh in
KHlbaaeoon^ where be was to wait tor bis
Ssiftafid bis promised viaticum ; and where
Mttitrit not even venture to approach the bou-
iMft'f house, ejccept to come lo ibe door or the
^Hi4(hv in the night; and when he had got
JkMt MoeBaaries ne waited for, withdraws, as
llfiaposed, a<cross the kingdom, over a tract
tfnaors and mountains uninhabited, till be
Qtie to bis uncle^s bou&e, and is by him| as
^ •§ every body else who knew him, re-
pBiiatid believed to be tbe murderer. And I
■dao iloubt, gentlemen, but, after the proof
^ittlbese things which you have beard, you
•iQi ie entirely satisfied, that he was truly
*^; and, upon that persuasion, will proceed
iilba main question that is directly before you,
BitMiy, tbe eviijeiice of the accesision of ibis
ftaod to that murder, which may be summed
*f ia ilie aKicles following :
*" of all, That it was the quarrel of tliis
against Gleoure, thai bad been only
tip and espoused by Breck Stewart^ for
I Breck committed tbe murder itself, as
late actor ; the i|uarril^ a« you have
Of the cAUae of oflVoct so btgbly re-
A, D. 1752-
[S0»
sented, was, that this pannel was blmself re<^
movad from his possession last year by Ole*
nure, who at the same lime » iihdrew from the
pannel, or forbore to employ him in the office of
an assistant or sub-factor, which had giwetk
him interest and intineuce with tbe lenanla of
Ardshiel ; and that this year be was insisting to
remove three or four tenants, whom the (laDnel
had lately placed there; in all which AWstn
Breck bad no personal interest or concern t
a strange cause of offence, 1 admii, to bo
90 highly taken up, and so deeply resented!
but every provocation works, according to
tbe temper or turn of miiftl of I he jiersofi
who receives it; and what those of the pau-
nel were in this respect^ you have heard
from the evidence, and Imi c seen in bis ctm^
duct before yon, when he himself objecled lo
Stewart in Lngnabaw, as an incompetent wjt-
ncGs against bim; for that the iMiinesa
bore him capital enmity, because be, tbe pan-
nel, bad been instrumental in causing tbe
witness to be removed from the pof^cssion at
Aiicbarn, in which the pannel succeeded him ;
nay, tbe pannel can ies this raadaess so f^r^ at
to have threatened Ew;in Macintyre and bit
relations, or posterity (a poar herd who bail
never served the pannel himself), iur no other
otl'ence, than that lie engaged to be ht-rd in
CampbtiU of Ballieveolan, tbe tenant who sue*
ceeded the pannel in the farm of Gleoduror,
from which be was removed last year.
Tbe second Anicle in proof is, tbnt, in con-
seqtieoce of the deep resentment conceived by
the pannel for this supposed injury of tbe re-
movings, be dibcnrered, upon several ncca*
sious previous to this murder, an intention op
desire to lake away the life of Glenurc : thia
he expressed to Appin^s bouman in u most in-
veterate manner, that be would be willing to
crawl upon his kne^ to a window to shoot
Glenure: but tbei'eafteT he proceeds farther
than expressions ; bis conversation with the
Maccolls, his own servants, in tbe brew-bouse,
about Christmas last, could be intended for
notliing but to instigate tbem, either by ibem-
selves, or by finding out proper instruments
amor^g five common people of Appin, to cut off
Glenure: and, when the late removings came
to be in agitation last spring, which tbe pannet
set himself in oppose witb all bis loigbt, it
appears that bis malice and fury again !$t Gle-
nure was increased ; witnesa bis conversation
Willi bis two landlords on bis way to Edin-
burgh, and wiib Mr. J>laclaren of Stirling, his
fellow-traveller part of the way ; in wbicb,
among other things, the pannel told tbem, that
be bad actually sent Glenure a challenge to
fight bim with pistols ; and told Mnelaren (whO'
says he found tbe i emoving was much at tbe
pannel's heart) that, if be should gel relief
neithfr at Edinburgh nor at tbe British parlie-
raeut, be would take the only remedy that re-
mained. Now, to a man that laboured under
tbia distemper of mind, it was natural or inci-
dent, that, after be had returned from Edin-
burgh ju the eud of April, with such degree of
SOT] 25 GEORGE IL
lUGcets as to obtain a list od bis Uil of suBpen-
tion ; and had some bopei pven him at Edia-
bnr^h, that when the baroot of Exchequer
should meet they would couotennaud these
remoftngs; when he had called the tenants
together, and acquainted them with these ope-
rations of his on their behalf, and sent them
with a notary on the Ist of May, to intimate
thesistto Glenure; and when, after this, he
learned, on the 11th of May, that Glenure had
Ifone to Edinburgh in his turn, got the sist re-
mofed, wss oome back to the country, and to
proceed in the remo? imrs ; that, from thia fresh
disappointment and affront, that must lessen
him m the eyes of those tenants whereof he
. bad assumed to be protector, the resentment
and hatred which he formerly bore Glenure
should be yet higher inflamed, and drife him
on to send out Breck, his emissary, to cut off
the gentleman whom they both looked on as
^eir enern^, in hopes of safety to Breck, the
•dor, by his getting abroad, where he was to
go however ; and to himself, the mandator and
accomplice, by his remaining in appearance
quiet at his own house.
And tiie evidence, that in fact this was the
case, consists of these further cireumstanccs, of
which you have heard the proof; that the ac-
tual murderer of Glenure, in the quarrel of this
God, and in resentment of which this paunel
discovered designs or intentions against bis
life, when the quarrel itself was wrought up to
the highest pitch, sets out from the pannel's
bouse, leaving his own clothes and baggage
there, dressed in a suit of the pannel's clothes
filter for the purpose, as being less remarkable
or distingtiisbed than his own ; goes directly
and puts himself in the way of Glenure; passes
bis time, whilst he waited for him, visiting the
sisters of this pannel in that neighbourhood ;
and with Stewart Ballachelish, who was also in
the general interest of the pannel in respect of
the removings ; retires, when the bloody deed
was done, to a deep retreat that was not tar off;
where he remains till this pannel caused to be
sent him his baggage and a viaticum of money,
such as he could afford or scrape together, to
enable the assassin to get off.
And that this aid and succour was sent in
consequence of a concert betwixt them, pre-
vious tojhe murder itself, appears from these
circumstances ; that on the morning of Thurs-
day, on the evening whereof the murder was
committed, the pannel sent an express to Wil-
' liam Stewart at Marvburgli, earnestly pressing
him to send him eight pounds, as the price of
cows not yet delivered ; and it hath not been
explained, and far less proved, on the part of
the pannel, who is a man of some credit and
substance, though he had then but little cash
in hand, what oilier pressing exi>;eiicy he then
bad for an immediate supply of money, when
be was living upon his own farm at Aucharn ;
be has not sheweil you, that he had accepted
m bill payable on Friday the 15ih of May, or
ihetermofWhiUunday thisyear, or that be
WM under distress of any kind, that iMairad
" " iiapply/ ^
Trial of Jama Stenartf
[aoB
Again, as the messenger of Thnnday broog ht
back no cash, there is another seut oo Friday,
being the packman, the cousin-fferman of
Breck Stewart himself, who carried two con-
missions from the pannel : First, That by a|
meaps he should send him five gnineM,aBA
this, though William Stewart should borrow it
from twenty purses ; and, 3dly, To tell Wil-
liara Stewart to give credit in five pounds ster-
ling to John Maccoll, bouman to Apoia at
K<Mdisnacoan, in case he came to demaira tiicli
a sum ; the pannel at the same time telling the
packman, when he gave him this mfagt,
that Allan Breok was about to leave the cow
try ; that he might be suspected of GleniBM^
murder; and that it was incumbeot apon ImMi
the panne], to supply Allan Breck in tnoii^.
Now, gentlemen, to this message Iron the
pannel to his friend William Stewart, by tht
cousin of Breck Stewart, you are to join ano*
ther corresponding circumstance dcpoacd by
the bouman, to which I must call for yonr par«
ticular attention; for, in relating wbai.pnind
betwixt him and Allan Breck on the aftcnmn
of Saturday the 16th, he swears, '* That Athn
Breok then told him, he must remain tbcBa,l9l
some necessaries he expected came to him}
and that, unless some money csme for hlni h^
fore next morning, he, the Muman, nDuatga to
Fort- William with a letter, which Allan Bmk
then wrote to William Stewart, merchant la
Maryburgh." Ooes not this as plainly wfmk
out, * rebus ipsis et factis,' the concert hetwht
the pannel and Allan Breck, before they [itoiy
as if you had beard it from witnc
at their conference ? Breck
upon an exploit, which, if performed, it'
require a little money, of which he, it i _
was then destitute, or very scarce, to cniry I
off the country; the pannel himself was ml
then in cash ; but the assurances he saftto
Breck must have been, that, without Tom tf
time, he, the pannel, would send the money
directly to Breck at Koalisitacoan, or elhv-
wise send him credit upon his, the pannolV
friend and correspondent, William Slawai^
merchant in Mary burgh. Their rcapeoiiia
actions correspond exactly with this conesrif
and arc unaccountable without supMslif
it. On Friday the pannel sends to Williaai-
Stewart for five guineas in cash, and an
to give credit to Appin's bouman for five [
more, in case he should call for it. On
day Allan Breck being with this bouman, ata
I place distant from the panoel, tells the bomnaat'
j that unlebs money came for him before ncfll
I morning, he, the bouman, muat go to Fort^
' William with a letter, which Breck then
to the said William Stewart, merchant at Mart-
burgh ; and such a letter, that Breck teUitnn
bouman, if he was catched with it, he mnstaai
it bpfore it was found upon him.
These circumstances are so pinching i^
the paunel, upon the capital point now inl
that he has made an Atlemnt le
awer or solution of thin difianlty
bringing Katharine Maoinvriutt
Ballatntlithi to danaaiu ti^
'•Allan fireck aI Uie g^at^iouse upan Thursday
mgkt^ ** Ih^^'^ ^" '" '!t»siri?d tierlotd) DoonJd
Stt^rnrt in I! hi ^u to ibe pannd, and
«|flairr him in i. . nd Alluii mniiey ;" and
ihal «bt* tldifer^d tlii« message to Dooald
Stewart Uiat naiiiMitifhl.
ilfmioi thin Duiiald Stewiirl hath deposed,
.noi tibfti ICikiiiaiHue Aliu'tnntiib delivered him
iflf ittrh fii^sas:e from Aliim, hut, ^' Thai ihe
ctM iiim fHit, and told turn that Allau Breck
.WitlMl himt ami was a Htite above the house
im ibe br»e or htll, where the depaneot went
mi met Altau Hrecic, who then lulU the depo-
MAL, tie wai |{t>ing iiumediuielv to leave Ihe
'4(imfiloni, and wa!} ufrnnt? then far Koalisiia*
«a4ii ; iiod desired the de|ftoneiU tu acq^uaint the
fk»M»*<l (hrtt he wau gone to ihat place, aiul tie-
n, ir pOBsihle, to send hnn inuney thi?r*» ;
; - deponent th^u promised to acquaint
iarttes Sicwari of* the ahote nie^sa^.'* And
ihtt Donutii Stewart further deposes, " That^
ifirr his coover»atlofi with the panoel about
•efjttiBt More, he detivered the above nieasoge
from Allan Ureck to tha pannel ; and Ihat the
piatie) Jilt not 8;iy whether he was to send the
iDoaey or not : thai thincouveriiaiioij happened
•baul ten o*clpck in the foreauon of Friday
tht IMli of May last; and that there waa
oobody |iie«ent/'
Aud, as 1 think Ihe only pUusibte tbiugr
ftwH lor defence of the pannel coosivts of
tIesetM'O festiuKiriies I htivtt juttt repealed, 1
fiitt«t kt^ yoiir attention, gt^ntteuien, to tlie re-
■aib I hiiTc 10 offer uiH>n ihein, that you may
blhe betti^i' ahle to dtscero ivhat degree of
^^kl or elferi ibey deaerve, or whether tbey
^Mrrve aoy ut all.
Aad, tirVi of al1» ibia Donahl Stewart in
oepibew Mod aon-in-law to Ballacbehsb, and
liiai in family with him ; and it appears the
whole fimdy nre io the t^t^ncral interest of the
Btoafl i i'vT John ^iewart the younffer **f fiaU
wMibi the bnuher-iolnw of this Oonald«
lHb^tfi<Me4l, ** Thai, in the timeof the spring-
in tills place in Mny laat, he was sum-
to be of the jury ; but that, at the
it reipieMt of the piiooel, thnt he should
W|in^(ent %\n\i ;i n<ULir\ nl liu- rriiiovint^ of the
iRttQta froui the cstaie ot ArrlstiiH. he vinB
'jp||g;oit tbai ei'fand to the pHiiueCs houne, bui
lilUinH lo Appu), upon heuriuiZ' of the murder
iMUttitted that day ;'^ and han further deponed,
^TW he wu« ui Edinliur^li io Au|^iiiit lawt,
Wi ma^ prevent ai eoOMulltitions of the paoners
k»yfn* and Ht^eotfi louchiuyf hi« deteoee:''
lf«ti are therefore to weijifh Iheeredtt due to a
lioflr witue>u» of that fumdy, swearmg lo a
I bf iwtxt the punocfil and him >
'ody pre^f nl, that tliey have
H ii> lit.' provi'd for ilie panneK
«' nirfufly ^iUm rveil to yon, ill re-
V i.l^^Mce on ihene two wrtoe«<se«,
II ibe servant maid of HaIU-
»■...: i« a manifeat discrepancy
ibeni, ttiousrh it ir not a U»ng time
tact they depose to happened, and it
kilh rrer amce beeu ibe subject of alteutioo
A. D- 175i.
[210
fir
and conversation in the country where thev
hre i for the maid Mays, ^* 8he received the full
meauao^e from Allan Brpck, and delivered it to
Doojfcld Siewarl » and that i»he did not desire
Donuhl to 1(0 u|} to Allan in the hill, nor dut
Allan Bnck desire her to send Donald io hint
thert:*- Ami yet Donald swears, *' That tlw
ma(d informed him, that Allan Breck wanted
bim, snd tohl iiiai v^here Breck was ; and that
Breck himself tfuve him the meBsa^e to he de-
hvered to Ihe pauriet ; which he didiverod ac-
cordingly about fen o'clock next day to the
pannel, whom he met alone in the lields/^ 8o
that ihe whole of this tale, attetiipied to be
proved by these two witnep^ses, nppejus ex-
tremely suspicious, and thuir accounts haoit^
not well together.
r.illy, Donald Ntewart'ti tale^ if it he true, and
if it be also true, tliul tlie parkmau wiis not
sent away by the oontiol to Kort-Wdharn, till
iihout twelve oVIock on Friday » tnf}(ht «orve lo
account for, or to have gfiven rise to the pnok-
nmu'i meaaage on that day : hut how will it
serve lo account for the lormer e:bpres« sent
U|ion the tuoruini^ ol Thursday by the panneli
to the same VViUiam Stewart at l^iarybarjrh, to
■end him down immeditttdy eight pouuda itor*
liiigf hy the hearerf
4thly, If it be true, wbirh both Willianfi
Stewart and his wife depose, that the packintin
came to them at Tort- William, upon Friday
betwixt ten and twelve, txs the husband snys, vr
about mid-day, as the vf itesays^ llien the pack-
man must have be^n misiukcn (u ihr h'>ur that
he was dispatched by Ihe pannel from hia
house, when he sjtys, it was about twelie
o*clock that day ; and if Stewart and his wiftt
are rathfr to he betievetl, tlial he ^^ot to Port-
William by noon, he must have bcf n dispatched
by the pannel long- before ten o*elock, when,
Donald Stewart says» be dehveretl Breek'C
tuessage to the panurh
And, lastly, Ibut which affords a solid and
satisfy iu|f reply to the defence founded on
the-se two testimonies^ of the «oin-in law and
servant-maid of Uallacheli*)h, t^ thsi coosidera-
tictn, th:U suppoeinhf it true, tor Ariftiutenl's
8ake, which they have sworn as lo iho sub*
stance, that Breck sent notice 1»\ D^M»:i!d to
ihe pnnnel, Ihat he was Qfoinif to I »i«n^
arid ivdoieil luimpy, how will th < ii«r
what w,ii obseivfcfil a little while ago, *^of iU«
pannei'S wriiinj: a letter uprm %uiti>rdav -itier*
nrvon, lo he sent by the botnnno to iViltiam
Stewart at iVIiirybur^h ?** For though here he
a lale, I am sfaid lately invented by the pan-
nel, of a mrsiiugp from Brrck to hifu after the
murder, to teli the place of hi<« retreat, aod that
he wHiited mouey, he bath forgot to provide
wttueHsea tor proving another thing, anii tkat
is a mes^iuge in return from (lie piioht-l lo
Breck, to give Breck notice tiow the nion^y
wfiLS to be f'lond i»r turni'ihett, imniely, by the
panners Ifiving crcdti to him, or the bouman,
upon William Stewart at Maryburgb ; tor,
without such ootice, how could Breck, from
the bottom of bis beugli ia KoabsnaooAu, ao
Sll] 25 GEORGE II.
exactly co-operate with what the pannel was
doinji^ from his own hotitie at Aurharn, as to
write a letter on Satiiniav to the same William
Stewart, merchant in Marybtirfi^h, to he sent
by Appin's h'luman, to««hich William Stewart,
on Friday, the |>annel tends Breck's cousin, to
bid him ^r\ve credit to Appin's bouroan for fi?e
pounds, ii'he should call lor it?
This circumslaiK^, therefore, which is quite
unanswered, as well as the express on Thurs-
day morning for money, before the murder
happened, makes the evidence before-men-
tioned remain in full force, the tales of the
messaife to the panneL mentioned by these two
witnesses, notwilh!>tandini;.
There hath been hardly any thing else
proved for the pannei'«4 tiofence, that merits
a reply : it is of no moment, that this was not
the lirst time that Breck Stewart made use of
the panuel's habit or clothes above-mentioned ;
he had usetf them once before in the month of
April, when he went to Uannoch, whilst the
pannel wan at Ediubnrs^h ; bnt it was not the
le-is true, that this habit %vas far more commo-
dious for the murderous purjtose he went about,
when he lefi the pannel*s house on Tuesday
morning the ISih of May, than his own French
clothes would hare been.
Again, it is true, that on the morning of
Thursday, he writes a letter for a notary, to
take protests against the removings, at the
same time that be writes tor the 8/. ; and his
counsel have said, that this was pursuing quite
another scheme : but this is by no means con-
clusive, to prove his innocence; he was galled
'tnd incensed by these removings, and liis pro-
test by a notary, after his bill of suspension was
refused, would be of verv little avail ; and yet
he writes fur one to attend, to be provided for all
events, as it was a possible case, that the in-
tended murder of Glcnure might have been
prevented, by his going another road than the
common one, or other accidents.
And as little can it avail the pannel, that,
after he was in custody, he wrote a letter to
Mr. Macfarlane at Edinburgh, describing Allan
Breck, and expressing a desire that he might
be apprehended ; for this was a letter shewn to
colonel Crawfurd, the commanding officer, and
now appears to have been a manifest dissimu-
lation, when, by the shewing of the pannePs
own defences, he sent money to Allan Breck in
order to help him to escape, on account, as he
says, of his relation, and having been formerly
his ward or pupil.
When, therefore, gentlemen, you shall con-
aider and duly weigh the whole facts and cir-
cumstances proved before you, and which I
have now resimied ; and when to these I have
last mentioned y ou >liall add, that, besides the
clothes and the money furnished to Breck,
there is a strong presimiptive evidence, that the
Tery lesser or shorter gun profluced before you,
and prove«l lo have been the panuil'8,and which
is of the wider bore of the two, was the ? ery
iDatrumeiit w ith which the murder was com-
Miitted ; fur dodc of the lerruits saw il upon
Trial of James Stewart^
[ei9
Thursday night, when they hid the arms ; and
when they saw it on Friday night, wheo the
arms were carried up to the hill, it was empty ;
and captaii: Chapeau and others have deposed,
it appeared to them to have been lately fired,
when he found it ou the 93d of Alay.
That the jiannel, on the first notice be re-
ceived of the murder being over, discovered an
apprehension that he himself might be brought
to trouble on that account.
That he made an attempt, tliongh a very an-
availing one, to throw the suspicion ot the
murder upon serjeant More Cameron, who
had not been in that country for many years.
That the pannel, being in custody, sent a
message by his barber to his servants to keep
their mind8 to themselves, and he would taks
care of them.
That his wife and one of his children have
too strongly discovered their sense of the iin<-
portanceof the article of the clothes furni8he4
by the pannel to Breck, by 8we^^ing, that Breck
left their house in his own French clothes,
though the wife, at least, most certainly knew
the contrary.*
I say, gentlemen, when you put all tbest
things together, you will form your opinion,
and pronounce acc<irdiiTgly, whether this pan-
nel is, or is not, guilty of accession to this
horrid murder P In all circumstantial evidence,
there is a possibility of innocence, even without
supposing any of the witnesses perjured : for
example, in the case of Stewart Abercrombie,
which you heani mentioned in the debate on
the relevancy in this trial ; it was urged for him,
and very truly, that some other man without a
hat, as well as he, might have been the mur^
derer of the deceased ; for there was no witness
who could swear he saw him do it: and in the
other case of Maccowan you heard mentiontd,
who was convicted princif>ally upon a shirt and
stockings being found in his |»ossession, which
the poor woman had carried with her from
home; it was possible that Maccowan might
have got these garments immediately, or by
progress, from some other fierson who had
robbed or murdered the poor woman. But, in
both these cases, the pannels were convicted,
and suffered accordingly.
And, in the present case, if, notwithstanduig
what you have heard, you can believe, that
Allan Breck Stewart committed this murdsr
purely of his own accord, anil without any
privity or previous concert with this |iannel;
* Lord Coke, af^er reporting the famons
Case, repeated after him by loni Hale, of erro-
< neous conviction upon circumstantial evidenoe,
and execution of an uncle for the murder of hit
niece, says, ** We have refmrted this Case for
a double caveat, 1st, to judges ; that they in case
of lite judge not too hastily upon presumptions:
and 2d, to the true and innocent man, tnat be
never seek to excuse himself by false or uodon
means, lest thereby be, offending God the an*
thor of truth, overthrow binieirM tho anck
did."
213]
for Murder*
A. D. 1752.
[S14
ud tbe mid ic>ven by the pannel to carry bim
off, was out of mere oompa^OQ, and a resolu-
lioB firvt taken after the pannel had heard of
the murder itself,* then surely it will be your
doty to acquit the pannel ; for, better that this
ier, atrociooa and scandalous as it is, should
am onavenn^ed by human justice, than that
one ianoeent man should suffer.
Bat, on the other hand, if, upon the whole
cfidenee, you cannot believe the psnnel inno-
cm^ but are coonnced in your own minds,
tfciC be baa bean knowingly accessary to this
OMrder; then, doubtless, your duty to God
and your country requires of you to pronounce
kia guilty.
Mr. Brova, for the Pannel.
Gentlemen of the jury ; I appear for the
pannel ; and, as this trial has already taken up
m ficni deal of time, I shall not follow the ho-
rakla and learned gentleman on the other
,«• toaae things which I conceive to be
to tbe matter in issue ; but shall
losnm up what I have to say, hi as few
vordi as the importance of the case, a^od variety
of ■itmra to be considered, will admit of.
As J am at all times under no small degree
tf copcein, aa often as I appear in any case of
ihia nature ; ao I must acknowledge f am at
frcsrat under greater concern than ever I was
■ any former case, when I consider tbe many
isftlvantagea which this unfortunate pannel
takours under.
In tbe first place, I am under the necessity
tf entering the lists with a learned gentleman
•f ficat abilities, and of much more experience
iatkcN matters than I can pretend to.
Bat, gentlemen, if I have undertaken what
I as Bot sufficient for, the fault lies at the door
tf the private prosecutor, who, beCore the pro*
HCilisB was commenced, begun early with
ffi*«ifa^ng the whole counsel at the bar,
vkiM most experience in these matters, not
■*ilhaB intention that they should assist in
9iig on the prosecution, (for many of the
' men who ^ere engsged have not ap-
iat the trial) but with an intention that
ibty ni^t not have it in their power to appear
m tkt side of the pannel.
A init prosecution .scarcely stands in need of
■ aivorate to support it. What then shall be
■id of a prosecution, where the prosecutor
dnysirs of prevailing otherMrise than by de-
priviag tbe pannel of those ^bo were most able
Mdrfrndbim.'
Fur my own part, I chose rather to have it
■idof ine,that I had imprudently undertaken
wkat f was not sufficient for, than »hat 1 had
nciiaritably refused to give any poor assist-
aaer in my power to a gentleman, who ima-
fints that f can be in the smallest degree useful
m bim.
* See Mr. Burnett's observationa as to this,
in chap. 14, of his Treatise on the Criminal
Laflv Of Scotland, p. S85. As to art and part,
iM foL 10, p. 807, of tbia CoUedion.
I might also take notice of many other
hardships which the panqel has suffered from
close confinement, during more than four
months, contrary to the great charter of liberty
in this part of the kingdom, — from the unwar-
rantable seizure of bis papers without any legal
authority— and from the shortness of the time
allowed him for making liis defence : but these
thintrs have been so fully insisted on by the
gentlemen who have spoke on the same' side,
that it is unnecessary for me to repeat what has
been already said. The facts have not been
denied by the prosecutor ; and as every man
must see, at first sight, what a prodigious loss
it is to a pannel, to nave access, for so long a
time denied to every person who was capable
of assisting him in making his defence, so f
must be forgiven to say, that if this trial waa
at all proper for a circuit-court, (which may be
doubted) it ought to have been brought on in
the ordinary form, by way of presentment, and
not summarily in the form or criminal letters.
By the former method, the pannel would have
have had upwanls of three months to prepare
for his defence, instead of fifteen days, which is
all the time the pannel has had, since the cri-
minal letters were executed against bim.
But, gentlemen, there is yet another disad-
vantage, which this pannel labours under,
which gives me more uneasiness than all those
I have already mentioned, and which, 1 must
beg leave to say, I dread more than all tbe proof
which has been brouij:ht against him.
What 1 mean is an impressioo, which has been
industriously rai^ied, and artfully propagated,
as if it were some- how necessary that tbe pan-
nel should be found guilty ; and as if his being
acquitted might bring a reflection on this part
of the kingdom.
Gentlemen, I do not expect, nor do I desire,
that you should return a verdict contrary to
evidence : but it is my duty to put you on your
guard, not to allow yourselves to ble carried off
by passion or prejudice : and though 1 have no
doubt of the integrity or honour of any of the
gentlemen to whom 1 now address myself;
yet, upon this occasion, it is my duty to say,
that if vou find the pannel guilty, either with-
out evidence, or upon doubtful evidence, you
will thereby bring the blood of an innocent
person upon your own heads: — 1 say, nn in-
nocent person ; for every man is hehl tn be
innocent, till such time as he is convicted,
not by doubtful, but by legal and complete
evidence.
And if the evidence is insufficient, uhich 1
am hopelul I shall be able to shew, 1 am under
no apprehension, that your acquitting the pan-
nel can ever brim; any reflection cither upon
yourselves or upon your country. It is the
peculiar happiness of this part of the island,
that, in capital cases, the law makes it neces-
sary, that the whole of the evidence should be
taken down in writing ; and as that has been
fairly done in the present case, the auUientic
record will satisfy every reasonable and think-
ing person, that tbe grounds upon which you
215]
25 GEORGE II.
Trinl ofJamet Steusart,
[2IG
liar^ procreded were solid ; aud if you bare lb e
apprdbiitmn ot iiurb, yt^u ought to disre^rd
wbot olbi'rs mtty sny of you.
Having said so iimcb in tlie ^ncrBl, I tbalt
now proceed lo cauddf r the crime wbich baf
befo vburc**d aifainst the paiinel, mnd the efi-
t)i>r»ce vrhii h bJin been bmutjht in support M'
Ihiil chsr^e* As to Ibc crime itself, I readily
a^ree w ilb i^very one of the gentlemen who
hare spoke before nie, tbat it is of so atroeiouai
a nalure, lUat wurds can hardly he found
atroD^* ertoufifb Ut express, in proper colours,
its enormiiy ; and f shatl nho admil, that it
is hii^bly nggriivnlcd from the particutar cir*
<^umHtances wbicb have been very properly
mentioned by the b«iu<inrahle cfenlleman on
%he other side. But then the prosecutor would
do well to ohi»c7rve, that the more atrocioim tbc
crime is, the more natural il 19 to presume, that
the punnel wo;! not ifiiilty of iL And it is my
duty to put you oti your guard, that a just in-
di^uHtion at the lieinousues^s tif the crime may
not lead you lo cortdeum nilbout proper evi-
dence X ioi\ bo welder foul the crime may be,
it IB much better that it should escape unpu-
iitMbed, ib:fn that an innocent person should
suffer for it.
The crime charg^cd ngainst the pannel Is^
that he entered into a consspiracy with Allan
Breck Stewart to murder CoHn Campbell of
Glenure by the hands of the said Allan, and
tbat the murder xvas accordingly 40 committed.
Ami therefore, before the prosecutor can pre-
vail, il heboves bim to prove, not only that the
murder »as committed by the bauds of Allan
Breck, but aUo, tbat tbe (Ninnel and be were
preriousty in a coDspirocy to commit tbe mur-
der in tbat manner
The prosecutor pretends not to have brought
any dii-ect evidence of either of these facts ;
but Ibeg-uilt ttf hejth pannelsi i« inferred from a
▼ariely of circumstnnces, which it now helonj^
to nsto consider, so far as is necessary for ttie
defence ef this pannel.
Aud here I shall not dispute ibe g-eneral
projumition hid down by my li>rd advocate,
•* That crimes may be proved hy circnni-
»tance<i.^* 1 achuit that any crime may be so
provetl ; but then 1 humbly cootetid, that the
circumstances oncht m be such, as necessarily
inft^rthetrudt ttf die pannel.
fn onler that this matter tnay appear in its
prii|H'r h|;-ht, I must brg leave lo lay down ime
. general rule, which admits of 00 exception, and
ought lo be stiicllj fnllnwcd in jud^mi^ of till
cireumslantiale evidence ; which is, that where
any fact proved spainst the pannel, is rn its
own nature such, tbnt it will ualiiraJly aiU
init either of a jfood or a bad cuo^truciioii, that
GonKtruclion out^ht always to be received which
IS f«tnurah!e for ibe panneL
Tins is founded upon tbe first princtpic of na*
tttral justice, which directs us, " To do to
others as we wnnhi have them to do lo us:^'
ftod as every one of you would think yourself
hftfdly used, if a bad construction were put
upou any action of yours, which would mta-
rally bear a gtM>done, the psnnel asks no morw,
than tbat you should judge of his action* by Ibe
same rule.
And here, gentlemen, I do not m^aii, iImI|
in a circumstanliale evidence, il is nec^svary,
tbat every circumsianee taken separttHy
should be conclusive r if that were nereasary,
few crimes could ever be proved. But wbst J
intend is, tbat, in till crimen ivhatever^ it is nt*
cessary that the pmof sboutd be certain iiii
conclusive; and as the law justly rejects alt
arg-umenls drawn from conjeutures «nd forced
consM^uences, il is not kii Hi cienl I o convict t
pannel, thai be might bste been guiliy of ttM
crime chunked ; but ihtf proot oujjbi to besadi
as to leave no room lo doubt that he was m :
and though it is not necessary, in a i irciiiD-
stanltate evidence, that every circumiit»0€«,
considered apart, should be conclusive; yttl
conceive I may lay itdown as aecrtain priM»
pie, that where tbe whole of the drcumstaoiOlf
are such, tbst they nnt^Ui nulurally havt hti^
pened without inferring the *^\uii of tb« fmaakt
such circumsiancefl, however numerous, oogte
to have do authority against bim.
To apply tbix rule to tbe present rate, I MM
hopeful I shall be able to satisfy you<, gentle-
men of the jury, tbat the facts charged agaioil
the panuel are either not proved^ or they ir%
such, tbat all of them might have usturallj
happened ; and at tbe same time the paniiet be
eotirely innocent of tbe crime ai which heia
accused.
But before I proceed to consider pvrttculirljr
tbe several articles of the proof brought agtrail
Ibe nanntl, it will be Decef»$iary to put yaa \m
ininrl of somethings v^hich hapjiened preriooS
to tbe murder, a« these ma\ tend lo exptain
many things which occur in the proof, iifd
wtiich shall be afterwards pariicukrly taken
notice of.
You have already beard, from ibe gentle*
man who spoke fir^t on ihe ssme siiU- with me*
that, m the m<»nlli of frVUrunry 1749» ihed^*
eeut^etl (J<diii C^ditiplicll yf (jleuure Wd» appoint^
ed tactor by the barons of exeheq cr, iipcm ths
forfeited estates of Lochiel, CsHart, and Ard'
shiel ; and, as the pannel, who was then teua
(if part of the esiate of Ard»biLd, bail alwa]^
lived in great friend^^hip with Glenure, iind hul
as fair a character as any genilemau in ibm
part of the country, I lie management uf the
whole estate of ArJt«litel was cNiinmittetl lu Mm
by Glenure, and . bis bill was laken for ihift
yearly rent at which the estate bad been ratetl
after survey by tbe barons of exeheqaer»
leaving it to tbe pannel to apply tbe surplus t#
the use of Ardshiel*s cbddren. This is proved
by Nevernl letters and receipts produced, and ill
particular from G tenure's leiier to tbe panndf
dated the mb December 1749, iu which he
wHles as followt^: '* This moment I bad yourli
by your servaui, wiib tOL 18*, 5d. sterling^.,
and the warraut L formerly gave yrni, tl^
ceive inclosed your note. Your payoients ire
very good, for' which I em obliged to yoo. I
intend, God friiling, to be at fidinbargb oa, m
lanM
ay*V
11
I
BI7J
Jnr Murder.
i4iy or two belure, the 25th current ; thai is,
I iuteiid to set om from this place this ilay, or
li*aioiTow eiiflit days ; and will go by tilas-
mr, and make no Hto|i by the way. Remember
Mv Ardsbiel'a dischariees, and all yonr other
laaliBg. I heartily wish you a i^rood journey .'*
"iMMtbe month of April 1751, Glenureap-
1 to the panoel to gi? e up the farm of Glen-
r, vbieli he then possessed, to Mr. Carop-
sf Ballieveolso, Olenure's particular
who, it appears, had offered an addi-
reiit ; and though the pannel had not
kmm lefally warned, and so was not oMiged
Is icnwve tor that year, yet he reailily agraed
viA Gteaure*s propojial, removed from the pos-
MROQ, and took from Mr. Campbell of Airds
ike fcm of Anebaru, where his family now re-
■dca; hot h« still continued to uplift the rents
m fomerly from the tenants of Ardshiel, and
tibewiK to possess a small farm called Letter-
more, wb'ioi he had subset at about 6/. sterling
pcramum.
In the month of April last, Glenure exe-
cflled a warning, and obtaioetl a decreet of re-
moving i^iost DO l«*ss than five or six tenauts
sf the estate of Ar4lsliiel, and also against as
■any tenants of the neighbouring estates of
Larhiel and Callart, decern inir them to remove
frsm their respective possessions as at the term
sf Wbitaooday last ; and, among the rest, the
funera two aub- ten ants in the farm of Letter-
Bore were also decerned to remove
This was comp:ained of as a very irreat
Wriahip in that part of the country, more
dferislly as the tenants in possession paid
tknrmiU regularly, and were willing to take
Ibcaaiks to the government ; and although the
fiHcl*! private interest in the matter was not
pcai, jfet, as be foresaw that a procedure so
me might be attended with disagreeable
Mftanices, he went and ot^n expostulated
viikQicvure upon the subject; but ne having
ymM4in his resolution, the tenants upon all
Ac ibif fsifttea transmitted memorials of their
a* Is he laid before the barons of Exchequer ;
■ Mi, ai the pannel waa then occasionally at
iMofgh, about some private affairs of his
•*B, be presented the memorials to one of the
kvms who disapproved greatly of Glennre's
ttainet, but could do nothing towards piitlinir
•«sf to the removinifS, as a quorum of the
^sas could not be held till the next Exchequer
ta« ; though at the same time, he nndertf»ok
kicpie^nt the caae lo the whole barons, add-
^r, that he made no doubt but they would
five an order to the factor to continue the te-
■Ms in possession ; which in part apfienrs
htm a letter wmte by the pannel to Charles
Aewart, writer, dated 2rth April 1758, and re-
ferred to in the inventory subjoined to the libel,
h the foltowing words: ** Yesterniglit I ar
lived liere, after a very tronhlesome jaunt ; and
•itfw bnrona coald not be got together, put it
OM of my power to procure an nnler for uur
Iheior; but baron Reunedy, who I found very
Imdv mid aeemed lo sympathise much with
Ihi iMMli' CMC, five It M bii prirale oploiim,
A. D. 1752. [218
that they should sit their possessions for this
year, and that all justice would be done them ;
and thouifht they should take a protest against
the factor's proceeding in a body, 1 mean the
Mamore and Appin tenants. The same advice
1 had from all I advised with, who were not a
few, and all were of the same mind, that the
tenants had a good chance, once their affair
came before the barons."
Upon this the pannel advised with counsel,
how the tenants might be kept in possession
till the Exchequer term, and by their advice
applied to the court of session for a suspension
of the removing; and, a bill of suspension hav-
ing been accordingly presented, a sist waa ob-
tained, and the bill vdained to be answered;
which sist was intinnned to Glenure, upon the
pannel's return to the rx>untry : but, answers
having been thereafter made to the bill by
Glenure, who had gone to Edinburgh for that
purpose, as the pannel had, through ignorance
of the forms, carried off with him the principal
bill with the sist upon it, the answers were ad-
vised without the bill, and the bill refused by
an interlocutor the 5th of Mav last.
Upon Saturday the tfth of May, Glenure re-
turned to hie own house in the country ; and
so soon as it came to be publicly known, that
the bill of suspension was refused, and that upon
Friday the 15th of May, being the term-day,
Glenure was to execute the warrant of ejection
against the tenants of Ardshiel, it was resolved,
in consequence of the advice the ponnel had
got from Edinburgh, that tM^ tenants should
take a protest against Glenure, in case he
ahould attempt to put hi* warrant of ejection
in execution ; and that they should cominue in
possession notwithxUuiling thereof, till such
time an their case should be fully heard before
the barons, and that their directions should be
known.
ActMn-dingly, in prosecution of this plan,
njHm Tuesday the 19ih of May, the pannel
wrote a letter to Alexander Stewart, writer in
Glenettie, desiring him to come and act as
notary to the protest intended 1 to be taken
against Glenure ; and at the same time he pre-
vailed upon two gentlemen of character in the
neighbourhood, viz. John Mtewart younger of
Ballachelish, and James Stewart younger of
Fasnacloich, to undertake to attend as wit-
nesses, and a>&sist at taking ihe protest ; but the
said Alexander 8cewRrt, the notary, having
happened to be out of the way, when the pan-
nel's servant went to his house, and this hav-
ing lieen notified to the pannel u|>on the morn-
iog of Thursday the 14tb of May last, (the day
on which Glenure was murdered) he dispatclira
a servant of his own very early, with a letter to
Charles Stewart, writer at Aochintonr, inform-
ing him of the dtRaptiointinent he had met with
by the alisence of the notary to whom he had
flrvt wrote, and desiring him (the said Charles)
to come to his house with all possible expedi-
tk>n thttt night, in order to act as notary to the
protest intended to be taken againit Glennra
next day.
919]
25 GEORGE U.
Trial of James Stttioartf
[SSO
In this sitiiatioa mutters stooil upon Tburs-
i\Ay the 14th of May last, beinjr the day upon
\«hich this most execrable murder was com-
mitted ; and therefore, the facts previous to the
murder being adjusted, 1 shall now proceed to.
consider the evidence which has been brought
f(ir proving lioth branches of tlie libel ; 1st,
That the munier was committed by the hands
of Allan Brock ; and, 2dly, That it was com-
mitted in conseouence of a previous conspiracy
betwixt him and the iiannel.
And here it is highly necessary that you
should be greatly on your guard, to distinguish
accurately between the facts charged against
the pannul, and those charged against Allan
Breck; which is the more necessary, as in
the libel the facts are so intermixed, that it
is no easy matter to distinguish the one from
the other. And though I roust admit, that the
learned gentleman on the other side has been
very candid in summing up the evidence; yet
I could have wished he had been more careful
10 distiuguish the prpof, so far as it relates to
the different pannels charged in the libel.
With rei^ard to the first question, concerning
the ijruilt of Allan Breck, 1 shall not take up
much of your time; for, though it is incum-
bent upon the prosecutor to prove that the
mur4ler was committed by the bands of Allan
Breck, yet it is not absolutely necessary for
the pauiiel to maintain the innocence of that
person ; as it is of no importance for the prose-
cutor to prove that the murder was comniitte<l
by Allan Breck, unless he shall also prove that
the pannel was accessary to it.
And therefore I shall very shortly state the
objections against this part of^ the evidence,
leaving it to your own consciences to determine
you, how far the evidence brought by the pro-
secutor is sufficient.
And the first circumsttance charged in the
libel is, '« That, upon Monday the 11th of
May, Allan Breck having been informed that
Glenure had gone that day to Lochaber, and
was to return by the ferry oV Ballachelish uj>on
the Thursday after, he had laid aside his
French clothes, which were remarkable, and
had disguised himself in a black coat and trow-
sers belongin}if to the pannel, with an intention
to commit the murder."
But, in the 6rst place, it is not proved, that,
upon Monday the 11th of May, Allan Breck
had bt'cn particularly informed of Gienure's
motions; fur though it does indeed appear,
from the depositions of some of the witnesses
referred to by the prosecutor, that Allan Breck j
had heard of Glenure's having set out that day
for Lochaber, yet it does not appear that he
had got any information what road he was to
take, or at what time he was to return : none
of thtt witnesses have said so, and, in cases of
this nature, no fact ought to be presumed
without proper evidence.
3dly, Though it is prove<l that Allan Breck
did change his clothes upon the day libelled,
yet it is not natural from thence to presume,
that this was done with tL^ intentiou to com-
mit the murder. It clearly appears, froin
the depositions of the witnesses relative to
this article, *^ That, upon former occasions,
Allan Breck had been in use of laying aside
his French clothes, and putting on tlie drev
of the country." And, in particular, it is
proved by the depositions of the three Maccolls,
(who caimot be said to have been partial for
the iMuinel) " That he had on these very clethea
belonging to the pannel, when he went to Ran-
noch in the month of April last :'* and Ume-
fore, as it was no new thing, but a commao
practice of Allan Breck's to lay aside his Frendi
clothes, and put on the dress of the country* it
is wrong in the prosecutor to lay hold of thii
circumstance, which is m itself mnocent, and
to wrest it into an argument against the pannd ;
especially as it ajipears from the depositious of
the same three witnesses, " That Allan Breck
wrought with them in the pota toe-field tht
greatest part of that afternoon upon whioh b«
came to the pannel's house," which was a veir
natural reason for laying aside his Freon
clothes, as not being proper for that purpose.
The next circumstance charged against Allan
Breck is, '* That, for louic days before tbo
munier happened, he had hovered near to the
ferry of Ballachelish, at which it was known
Glenure was to pass ; that, during that period,
he had been twice at the house of Ballacoelish,
twice at the house of Glenco^ and once at tht
house of Callart."
But, in the first place, it is not proved, that
Allan Breck knew that Glenure was to pan at
the ferry at Ballachelish ; and therefore it is
ridiculous to talk of hovering or lying io wail,
when it was not known at what ferry Glenun
was to pass.
3dly, If Allan Breck had known tliat tb«
defunct was to pass at Ballachelish, and bad
intended to lie in wait, he would have kept
close at Ballachelish, and would not have flono
either to Callart or Glenco, which are eadi of
them at three miles disUncc, the first on the
north side, and the other on tlie south aide of
the ferry. It is much more natural to pre-
sume, that Allan Breck went to these plaon
with an intention to visit his friends who lived
there. And this is another instance where tht
prosecutor wrests a circumstance, which is in
Itself innocent, into an argument against tht
pannel.
The tliiid and strongest circumstance against
Allan Breck is, *' That he absconded that very
night upon which the munier happened, and
left the country soon thereafter."
But this circumstance has hern in like man-
ner obviated by the proof brought in Itehalf
of the pannel. It is clearly proved, tliat,
in the year 1745, Breck wa** a soldier in the
regiment commanded by colonel Lee ; that|
immediately after the battle of Preston, he de-
scrteil to the rebels; that he remained with
thi'm till they were happily, defeated at the
battle of Culloden ; and that, since that time,
he had been in the French service : and there-
fore, as Breck must baft foreieen, tbati upon
»1]
Jbr Murder.
Um Bianler of Gknare, a rery strict search
wouM be made, it was very natural for liim,
thon^h innocent, to abscond and leave the
coootrj, and accordingly it appears from the
poaf, that be ^ve this account of the mutter
ta etcrjf peraon whom be had occasion to con-
vfita «ilh upon that Nubject ; and therefore, as
this dreamstance, as well as all the rest, may
■alafiby bear a construction favourable for the
naaat^ it i» wrong' in the prosecutor to put a
Aniction upon "an action which will
ivalj bear a good one.
The only other material circumstance from
wbicb the ipuilt of Allan Breck is inferred, is,
that, before the murder, he had, ui>on different
aecaaooa, nsed threatening or resentful expres-
■aoB acainal the defunct : but, as it seemed to
be adaaitted by the learned gentleman on the
e, that expressions alone were not suf-
L to infer the crime, I slmll have occasion
10 emndcr more particularly the effect of such
aiyisawoiM under the second branch of my ar-
gameat, arfaich properly relates to this pannel.
And wfaacerer mav be your opinion with re-
£rd lo Allan Breck, I must humbly contend,
it Ibcre ia no sort of evidence that the pannel,
BOW at the bar, was in any previous conspiracy
to conmit tliia heinous murder ; and, as far as
the nalore of the thing could ailmitof it, the
Gwel haa profed the improbability of his
Dg any way accessary to it.
In the first place, the character of the pannel
focs far to protect him from any suspicion of
Hiikind. Though that part of the evidence
VIS Del taken down in writing, yet he has
fntcd by witnesses, beyond all exception, and
CM appeal to vour own consciences for the
Mb or it, that iiis character in private life was
Micr stained by auy dishonourable action. Is
"*( then to believe, that one of such a
r can at once plunge himself into the
I guilt, hy committing the crime of as-
'^ which is of all others the post
*WiHrto human nature?
iir.The i
Sir, The pannePa guilt is still the more im
pMfe, as he conld not possiblv propose any
y^by it. He was a man or too good un-
VMHluig, not to see that Glenure'd place as
■(i» voold soon be supplied ; that the strict-
M Kareh would be made for the authors of
V eaoroioiia crime ; and that his family, as
■>Y nearly connected with the forfeited per-
>■■ woald be first suspected : is it possible,
^ in aoch circumstances, it could enter into
^ imagination of the pannel, to commit a
oine of so black a natnre, when he could not
•sly nap no benefit by it, but when it liehoved
Mcosarily to involve his own fiimily in inevita-
he distress and ruin ?
But, 3fllv, There is another circumstance
reoflkers it incredible that the pannel
I have lieen in any previous conspiracy to
oanmit this murder ; for it is clearly proved,
Ibatatthat ^ery time he was pursuing quite
esatrary measores; that he had provided him-
Hif, and was cndeavooriug to provide the other
•ndit is further
A. D. 1752. [222
proved, not only by verbal, but also by written
evidence, which cannot lie, that his intention
was to proceed in a legal way, by taking a
protest agfaiust Glcnurc upon the term-day, in
case he slioiihl attempt to put his removing in
execution. This is dearly proved by the pan-
nel's letter to Charles Stewart, the notary,
dated the 14th of May, being that very day on
which Glenure uas murdered: which letter
ought to have the greater weight, as it is not
produced by the panncl/but by the prosecutors,
the same havinj;^ heen recovered by them out
of Charles Stewait's hands.
In this letter (tvhich greatly deserves your
attention) the pannel u rites to Charles ^)te wart.
That, by the negligence of his servant, be had
been disappointed of the notary he first intend-
ed, *' which he reckons a very great misfor-
tune." And then the letter concludes in these
words: ** The uext best thing I can think of
is, that you be here this night, without fail, if
you should hire a horse ; as every thing roust
go wrong, without a person can act, and that I
can trust. This is such a tie upon all the
members of our family, that I'll press you no
further, but do depend on seeing you once this
night."
it is indeed true, that this letter does not
particularly mention that the pannel's intention
was to take a protest afifainst Glenure; but
then, this is fully explaineil by the depositions
of the witnesses, particularly hy the oath of
Charles Stewart, who fle|)Ofie8, '*' That he re*
ceived a second letter from the pannel, of date
the 14th of May, dosiring him to attend the
next day at the ejection ; hut he declined the
same, oecause he did not care to disoblige
Glenure."
This is further confirmed by the oath of
John Beg Maccoll, the person who carried the
letter, who deposes, ** That, upon Thursday
the 14th of May last, the pannel gave a letter
to the deponent, to be delivered to Charles
Stewart, notary public at Mary burgh ; and
tuld the deponent, that the letter was to make
or cause Charles Stewart come to the country
of Appin to protest against Glenure, in case
he had not a sufficient warrant to remove the
tenants of AnIshicI : that the pannel destretl
the deponent to make all possible dispatch,
and desire John Breck Maccombie at Kin-
talline, and J jhn More Maccoll, servant to the
pannel, who was then at Kintalline, to ferry
the deponent, from Kintalline to Onicli, being
much shorter than the ferry of Ballachelisb :
that he sat oot from Aucnam about 7 or 8
o'clock in the morning, and made all the dis-
patch he conld to Fort William, where he ar-
rived about twelve o'clock. Deposes, that,
when he came to Fort William, he delivercil
the letter he got from the pannel to William
Stewart, merchant in Maryburgh, who told
him that Charles Stewart the notary, was not
at home, he having gone to the braes of
Lochabrr in the morning ; and told the depo-
nent, that he, the said William, had wrote to
the pannel in the morning, and that there was
82S]
25 GEORGE II.
Trial ofjMmet SieoMrf^
[S24
R notary along with Glenure, who would aer? e
the pannel, as well as Glenure.*'
And it is further proved, that the panncl had
gone so far as to provide proper witnesses to
be present at taking that protest, as appears
■from tlie deposition of John Stewart younger
of fiallachelish, who deposes, *< That, in the
time of the spring circuit in this place, in
May last, he was summoned to be of the jury ;
but, at the earnest request of the pannel, that
lie, the deponent, should be present with a no-
tary at the removing of the tenants Imro the
estate of Ardbhiel, he was going on that er-
rand, to the pannel's house ; but returned to
Appin, upon hearing of the murder of Gleunre
4;ommitled that day.
And this observation, that the pannel had at
this time no thoughts of the execrable munter
of uhich he is now accused, is further confirm-
ed from William Stewart's letter tp the pannel,
dated the same 14lh of May, recovered by the
prosecutors from out of the pannersreimsito-
ries, which concludes in the following wonls :
<' I find Glenure has a mind to eject the te-
nants ; hut they ought to be deaf to it, and, at
all risks, keep possession, as they are in good
hands, as it must end in the exchequer; so that
I beg they keep possession : as there will be
no troops, they ought to repel force by force,
anil take their hazard of the consequences ; as
it can be no more than violent profits, which is
often modified in inferior courts, besides the
•«s(chrquer, who will insist for no such : their
chief design beiuff to have a sett of peaceable
tenantry, and a well-paid rent : ao that the peo-
ple might to be assured they will he supported
as far as law will, which, do doubt, must de-
termine in their favours."
From the depositions of these witnesses,
joined with the letters which have been read
in your presence, it is incontestably proved,
that the plan concerted between the pannel
and his friends went no further, than to take a
protest against Glenure, in case he should at-
tempt to execute bis warrant of ejection against
the tenants ; or, at furthest, that the tenants
should continue iu possession iiotwithstandiiicr
the warrant, ami run the risk of violent profits.
And it is of great importance in the present
•rgnment, that these two letters are dated upon
the morning of that very day op which the
nurder happened ; a circomMance utterly in-
consistent with the libel, uhich has no other
footing to stand upon than this, That the pan-
Del dad Allan Brack hud concerted the murder
previous to the time when Allan Breck changed
his clothes, which, os has been already observ-
ed, was four days before the murder.
Amidst such glarin{;impn>habiliiies, it wouUI
require the stroniufest evidence to convict the
pannel. And this leads uic to consider the
several facts, according to the order in which
they are laid in the indictment.
And the first thing char|i;ed in the IiIm-I is,
ibat the pannel had conceived an uiijnsr re
■CDtmeot against the defunct, for three diflfer-
ist, Bmmmo he had accepted the
factory of the estate of Ardifaiel ; Sndljrt Be-
cause he had removed htm froiD the hurm of
Glenduror; and 3dly, Because that, in the
month of April 1752, he had takeo measures
fur removing oertain other persons, who were
tenants and possessors of that estate.
The first is clearly disproved by letters and
discharges under the hand of the deceased,
which have been read in your presence ; and
from which it appear/;, that, for several years
after the date of the factory, the deceased and
the pannel were in perfect good terms ; and
that Glenure had such confidence in Ihe.paa-
uel, that he had employed him to uplift the
rents from tlie other tenants.
The second ground for resentment is dis-
proved by the oath of Alexander Stewart of In-
nernahvle, who deposes, " That the tioM
when I lie pannel removed from Gleaduror, he
told the deponent, that he had had a meeting
with Ballieveolan, and that there was a com-
promise betwixt them : that he did not hear of
any warning, but that be removed voluntarily."
And therefore the only ground of resent-
ment which remains, is, that the defunct bad
taken measures for removing some of the other
tenants of the estate, as at the term of Whit-
sunday last : and though it may be true, that
the pannel has, upon different occasions, con-
plaine<l, in strong terms, of the hardship of re-
moving these tenants ; yet it is impossible Is
believe, that so trifling a cause of resentment
could have so strong an effect, as lo push on
the pannel to tlie barbarous murder of which
he is now accused ; more especially, when it
is considered, that he is noways related to any
of these tenants, and that none of them are so
much as of the same name.
The prosecutor has been pleased to lay great
stress upon certaiu foolish expressions alleged
to have been used by the panuel upon tlie sub-
ject of these removmgs.
It must occur to every mau, how extremcij
dangerous a proof of this kind is : there are
very ^e^ witnesses who can repeat exactly the
particulars of any conversation, and still fewer
who e^n recollect these particulars at any dis*
tancc of time. In such cases, much may de-
pend upon the tone of vdice, or (gesture of the
person who speaks ; and the variation of a cir-
cumstance may alter the meaning of the Hhole
expression.
Besides, there is an obvious disadvantage
which this pauoel labours under, and of whi»,
in the present case, he hai no small reason to
complain ; which is, that the particular ex-
pressions charged against him are nut taken
into the libel, neither are the circumstances of
time and place mentitined ; by which the iianf
nel is deprived of the op|K)rtunity he OMflrlit to
have had ot bringin*^ a contrary proof, if
the paiticular expressions were kn<»wu tolttc
pnisecutur, it was hut just that iliev sbeold
have been taken into the libel ; and, uu tha
other hand, if they were not knawu, no aoch
thing ouyht to have been at all mentioned.
And indeed, with regard to some of tha as-
Jw Murdit.
•t b lm|ioflftUite io believe, itiiit Die
I9»d ibe words d<»pr,<ied to bv ibe wit-
Thas, in particular, tbe slnmi^est ex-
I is Uiil fSep«i«pil \f\ hy Jdtiti >hcc4»ll
VI ho dtfpiMefi, ** That, ftbtnit u%o
I agov be beard the fannel say, that he
I ffpeod ft ib»t Mtt Ctti'tiure, though he
v«m «• bb ku€e« to lb«> «%tiit)o\y to tire U.'*
B«l M ibb etiifesjiion ia nnly deposed to by
•, who 4e«>m« 1(1 liaTe becD abiin<
It fbrvrnnl in ^^ '< ti^ftinst the piinnel;
« (t 0 yctf^ly ini i4t, lit tbe time de-
^■{#4 111 ' ^ i , in(;(ian[iel woubl hare
iiHjthi -■$ it is deady pro veil,
bjf ibe drpx^ujuu^ «H ihe oiher M'iint*;i«(fs, tbut
l&t 4«i:ea9t^ ftnd the pdniKl were then in sitrict
pil»br|i lOfffther ; nnil thitt at that thne the
iBit4 bia iuch conHdiiice in the pamiel,
be was Ibeti eDiptoying hiin as sub'tselor
ba rery Icdtous*, aiKl is iinueoes-
tv tnalce jHirticular ohscrvaiions
expre&9iun» dt'posed to by the
e&; at (he same time it is
k tor roe to recollect ihein, as 1
ipfMirtODity to know them, till they
p*ed to by tbe witnesses Ihrmsehes*
It 10 aiiiMrtifint f«ir me, in gftieral, to nbserve.
- • It i» r«^fe«enieil in Ibe ' Sapplemrnr/ thnt
mmmm lArtol thi^ nrfirunient (p. 'iCiO, hne 15
if iIm report of the trial rctVnetl to in the
*S«fifi|rciieiil)* Mr. Brown ui*!* internipterl by
INaMBia CattipMt of 8(juih«Hu(t« imi* f\\' the
pTf^ wbo iaid aloud to liim, '* Pr,iy Sir, cut
iboft; we have enoiif^h of vi, and en? ipiite
limli tbr irtnt huvirig l^ited loti^:^* iipDU
aiidi ibr author of the Supplement remarks :
* Ita mifirtefMlenteit rxclHuiatory iiilrrruptidn
iMMOetMl Mr. Brown, shocked \\\e an-
ftitcc,amJ itbo^ed plainly the $icttkd minds
<C •••afrtlki. It is very triu% that the trial
M li««d 1410^. But who were tht^y that
iMkftnl it BO much? Surely not the pan-
m% bwyera and witnes^ies: lor the depofii-
imiif tba iviiiiesfps tor ttte priiseeiitom lake
^t09 pftK^* whricni those for the pannel
l||| fl l^l^i and th^ Lord Advocate's* speech
H ^ jcry ftfainst the rmiinel, tills up 78
Mn| but that of' l^ir. Drown for him, only
U*. s^lliftl in this lonif diet of the court, nine
)nr» al l€»«t of tbe time suent was employed
Utbe fiioa«:utoni for one botir i>y the pannej.
mm hitli reascm theo had South^hall to be-
icra «o bbomaoely, and do a thing, that, 1
mm taidi nrref happened before in a court of
jfKtket • f >nc or two mora oj the jury spoKe on
ibii c3CU«(0rdiiiary oeeanjon ; but wnether se*
«ftiiiii|^or mfifmng South-halt's motion^ was
aai Ikefi 4iilioet)j naanl hy many, ft seems
U W afretd iqpoo ttow, ihst it was to desire
iff. Brwiiii to prnc!*'* rl ; which lie did, after
ilHnaiiiy bi for having been thus
litttTUplutt ; chrtk that behoreiMo
a^ I make him forget
^ ( j^ that he would
aiL V ilvtie/*
\ ,
A. D. 1752,
tluit some of tbeoj may bear an innocent mean
ing"; that others of them appear to have heeij
uttered when the pan net wus in drink ; and
iliAt none of them ure so strong, as that de
pOKed to by tlie bouman* which h>is been %{m
ready answered.
And though it sbonhl be admitted, that tha
pauiiel had, upon dilTerent occasions:, ejcpre!sse<0
iumself foolishly in terms which implied re- I
sexitment against the defunct; yet this, by it- J
self, is by no means sufficient to piore, that th«,f
pannel was accessary to the murder which af-
terwards happened.
And here I have only to appeal to your ownl
hearts, and ask^ bow often you have heard re*,|
sentful expressions thrown out iu conversation^]
where you were yourselves conscious, that no-, I
thing was seriously inteniled ; and though it 1
may be true, that such expressions may Server,]
as a weight in the scale, with other circum**]
sunces, to convict the paaoel ; yet this holdft,
only where these tHber circumstances caonol i
naturally admit of an innocent construction,, I
but can never apply to the present case, wlk^rr, ,
I am hopeful, I shall be able to shew, that ttia
other citcum:)tances provetl against the panuii j
have no shadow of relevancy in theni« '
At the same time, it is a circumstance of |
some weiirht in the present case, to take off the
etfect of these expressions, that it is not pre-
tended, thai the murder was comniiUed by the
paune)^ on the contrary, the libd >4els forlh^
thut the murder was committed hy tbe hands
of Allan Breck: and however it may be true, ,
that expressions importing resentment, proved \
against the panue), may go hi to presume
guilt, where none other fs coodesceuded on as <
the actor and perpetrator of the murder ; yet
that will noways apply to the present case,
where the very libel, upon vihich the pannel is
nccueiei], sets forth, that the murder was not
commilled by the pannel, but by another.
The second fact charged in tlie libef, it
fnunded oo a concert supposed to have been
entered into betwixt the pannel and Allan
Breck, upon Mtmday the 11th of (^lay ; tri
ronsei^ueoce of uhich concert, it is alleged, th«
murder happened. But as the prosecutor baa
brought no evidence of any such concert, oc
lliat AIIru Breck and the pannel had any con-
ference whatever upon the subject that day ;
sr> it is proved, as strongly as the uature of llie
tiling can admit of, by the prosecutors owa
witnesses, that do such thing could possibly
have lieen concerted that day. The sum ot*
the evidence relative to this matter, Is, that
Allan Breck came to the nnnnel upon Monday
the 1 1 ill about mid-day, the panuel t»eing theit
sitting in a 5eld of potatoes, Jii compauv wtlti
three of his servants : that, alter they had sit
lor a quarter of an botir together, a meMiage
cat»e from iMr. Campbell of Airds, desirinip
the pannel to come to him at Keil, which ti
about two tDiles distant from the pannuPft
house: thai, in consequences of this loesaage,
he immediatelv went tp Keil, leaiing Albn
Breck with his serraiiU; that b« naoainad
S»7]
25 GEORGE 11.
Trial of James Siewifif
tSS8
il^itb Airds all that afternooD, and did not r&-
tuni to bis own house till late at night, the fa-
mily being then at supper, andsereral strangers
alonff wiui them : that the pannel and Allan
Breck bad no conversation together in private
that night : that they slept in separate places,
and that the pannel had left his house next
morninff, before Allan Breck ffot out of bed.
As this is a very roateriaicircumstance, in
respect it is admitted upon all hands, that this
was the only occasion the pannel and Allan
Breck had of conversiniB^ together, between
Glennre's return from Edinbnrffb, upon Satur-
day the 9th, and the murder, which happened
upon the Thursday thereafter, I must beg
leave to resume, particularly, the evidence on
this head.
John More Maccoll deposes, " That, upon
Monday the lUh of May last, he saw Allan
Breck come to Aucham, dresseil in his lonff
clothes, and came directly where the pannel,
Allan his son, John Beg Maccoll, and the de-
ponent were covering potatoes: that, when
Allan came up, they were resting themselves,
and sitting by one another : that Allan Breck
flat with them ; and all the conversation the
deponent observed, consisted in some questions
about the welfare of the people of Glencrearan ;
and that he did not observe tne pannel have any
private conversation with the said Allan Breck ;
for that, a very little'time after Allan Brock's
arrival, the pannel had a message to meet Mr.
Campbell of Airds at Keil ; and that this hap-
pened after mid-day : that the pannel imme-
diately, upon receiving the above message,
went away, in order to meet Airds ; and that
nobody went along with the pannel, Allan
Breck having stayed with them."
John Beg Maccoll deposes, '* That when
Allan Breck came, upon the 11th of May last,
to Aiicharn, the pannel was seeing the depo-
nent, John More Maccoll, and Dougal Mac-
coll, working at potatoes ; and that Allan
Stewart, the pannel s son, was likewise there :
that, when Allan Breck came, they were all
sitting together ; and that he seated himself by
the pannel, and had some conversation in Eng-
lish, which the deponent does not understand.
Deposes, that Charles Stewart, son to the
pannel, and -— Stewart, daughter to Fasna-
doich, came to Aucham from Fasnacloich a
little after the said Allan Breck." And further
deposes, " That when Allan Breck came back,
upon Monday the 11th of May last, to the
place where the paunel, deponent, and others,
were covering potatoes, as above, they had sit
together but fur about a quarter of an hour,
when the deponent went to work at potatoes at
a greater distance; and before he went away,
heard a message had come for his master to
meet Airds at Keil, and heard his master
speak of p:oing there ; but when he went, or
who went along u iih him, the deponent does
not knoiv : that tlie deponent continued work-
ing at the potutoea till the evenmg, and the
pannel was not come home when be came from
kia work : that the pannel cane home at bed-
time, accompanied with John More MaciK-
chattan, who lay with the deponent thai
night."
Dougal Maccoll depones, '* That when the
deponent came home from the wood, upon
Monday the 11th of May last, the paniid was
not at home, and the deponent was told, he was
gone to Keil, to meet the laird of Airdi ; and
that the deponent had gone to bed before th«
pannel came home that night ; and that early
upon Tuesday morning, when the deponent
sot up, he saw the pannel without, who toM
him, that he was going to Appin's house; and
that, to the deponent's Icnowledge, Allan Brecki
or the pannel's sons, were net then up : that he
saw the pannel go towarda Lettershonay where
Appin lives. Deposes, that Allan Brack left
Aucbarn before the pannel returned from Lel-
tersbnna."
Katharine Maccoll deposes, " That the pan-
nel went in ttTc afternoon of the day (vie. 11th
May) to Keils, to meet Mr. Campbell of Airda ;
and that it was late at night before he canae
home; but that the family had not rapped
when the pannel came home; and that the
mumel supped in company with Allan Biedc
Stewart, Fasnacloich's daughter, and AroU-
bald Cameron, nephew to Fasnacloich^ end the
pannel's family."
Archibald Cameron deposes, *' That, upon
Monday the 1 1th of May last, the deponeet
came from Fasnacloich's house to the pjuioel^
house, after mid- day: that, some little tine
after he came there, he saw Allan Breck
Stewart: that the pannel was not at bone
when the deponent came first there, but cane
home before night- fall: that the depoDcnl,
pannel, Allan Brack, and the family, sat in one
room, and supped together : that he did not ob-
serve Allan Breck and the pannel speak in
private that night: that the deponent and
Allan Stewart, the pannel's son, lay in one beds
and Allan Breck and Charles Stewart, son to the
pannel, in another bed in the same bam : that,
to the best of bis remembrance, they all went
to bed much about one time, and got up toge-
ther next morning : that the deponent did net
observe the pannel about the bouse next i
ing when he got up."
And the depositions of these witne
corroborated by Donald Campbell of AinK
who deposes, " That, upon Monday the 11th
' of May last, the deponent sent to the panneli
desiring him to come to him at Keils, a hrm
belongmg to the deponent, at about a mile's
distance from the paniiePs house: that fbe
pannel accordingly came there to him that
afUrnoon, as soon as he expected him : that
the deponent's business with him was for bis
assistance in setting that farm : that the farm
was accordingly set, and the pannel himself
took part of it, and conducted the deponent e
part of his way home, and then they parted :
that, before parting, he desired the pannel togo
next morning to Appin's house : that the pan-
nel accordingly diil so, and the deponent wd n
letter from him from that place."
JuY Miirden
wlial Tiaa betn said, therefore, it ap*
Eifti the prdseciilor lias iiol only nut
L llttt opoo the 1 tth of May there was
*~|f oOiicefied wtih regard to the murder
the paontfl and Allan Breck, hut, on
CMilfUi, it in proTedf a» strongly an the
are«C tJie thinf can admit of, that no such
or couU he concerted betwixt I hem
I ftnd \{ this is oace estahh^hed, it
llie fo«ii»dation upon tvhich the wlmle
; as it ii not pretended, that the pan-
I Alhui Brick hati ever any other opuor-
•f eooirerainii^ lui^ether, helwjjtt Ule-
from Edinburgh and the time of
Tbe ikini article charged tu the indictnoent
I n^ TMi, IB iwrauaocc of the concert entered
\ Wfoti^ Ibe 1 1th of Mav, the pannel had fur*
fireek with a suit of hiti own
A.D. 17552.
[S30
I oHer to serve aa a diagui^, that he
I W ntthled to commit the crime with the
aalclj.
t Miilw irst place, it must occur to t'ftty
I vbokian me^ that this is a mostimproba-
'p| ^ if it had been intended that Allan
hsM be di^ui^eej at the time of com-
lb« Gime, it is impossible it could he
Vf ialcnikii, that lie should be disguised
mt bdoogiog to the pannel ; for^ how-
ifaw m^l bare sen ed for a disguise to
Br«dE« il might aerie eaually for a point
* — *^ "painai the pannel : aud therefore
rie potsitioii can ijfain credit with
aotesei it shall first he supposed, that
ia not only the most wicked, but also
_ fooliah aiuoti^' men f which will not
^«Mily er»4iied by you» ^^ ho haTe been wii-
avKilo ibc idccent appearance he has made at
iiitraL
94f » k» tb« story ia improbable, so it is
liiMitittA of all foundation io truth ; for
red b^ any of the witnesses, that
ftaroiaheu or gave the cloihes to
he
put on a suit
bckmgiag to the pannel, or his
Ibi Alooday before tike murder ; yet
dvmb be ri4icoWia Io nay^ that a party could
ktiiifiqlaBl u aoccssary to a murder, because
te tb» iDianlerrr had on bis clothes at the
tei ivh«B Uie crime was commiiteii.
Aod,hwt1y, upon this head, the circumstance
idl : and though it is proved^ that
bia French clothes, and i)ut on a s
iffbuiguig the clotbaa has been fully account*
illk m ibe foroitr part of the argument ^ and
■ il bflp l««o efearly prOTetl, that Allan
hmk bail bico foroaarly iq use of
tea tatjr dolbea, tlie accideot of hii
IMb •■ ad the time when the murder ¥
and
Allan
wearing
II haviug
was com-
ba? a DO weight against the pannel.
Tbf fowili article cbarc^ed in the libpl is,
IWltii|iooj^«iDoniiiiff of tbat day upon which
lbt»ytteMiaiuK!Pi^ tbe pannel had st'ut John
iob« A aervanl of bia owti, to Fort-
bi ^f4tsf Io watch, and gire intelli*
mmm tbe niotioni of the deceased ;
i£09 bats b«cii takes to prore this
Bnt^ tinluckily for the prosecutor, this fact
happens to be contradictetl by every part of tha
evidence.
In the Brit place, it appears, from the oath of
John Beg Maccombich, ** That it was known
over the whole country, that Glenure was to
have been that evening ai Kintaltine, which
lies on this side the ferry of Ballachelish ;'*
and therefore, if the pannePs intention had
been to watch Glenure*s motions, it is natural
to ask, what good reason there could be to
order his servant to cross the ferry, and go on
to Fort-VVilliam, when, by waiting at the ferry,
be was an re to get inteUigence of Glenure*9
motions?
2dly, The fact is contradicted by the depoii*
tions of Fergus Kennedy and John Mackenzie,
two witnesses also adduced for tbe prosecutor,
who concur in deposing, *^ That John MaccoU
met Glenure and his company in their way
southward, about three miles from Fort-Wil-
liam.'^— 1/ his errand had been to watch and
give intelligence concerning G!eniire*s motions,
he would have certainly returned immediately,
and have given iotelhgeoce accordingly. But,
instead of this, it appears, from the depositions
of these witnesses, compared with the oaths of
William Stewart and his wife, that John Mac-
coll did not return, but went on toForl^William ;
which is utterly mconsistcnt with what tbe
pruf^K!Utor supposes.
And lastly^ this circumstance is flatly con-
tradicted by theoathof John Beg Maccofl him*
self, who expressly deposes, ^* That, when he
went to Fort-WilUam with the above letter io
Charles Stewart, the notary, he had no orders
from bis master to em|uire after the motions of
Glenure, or to acciuaint nny bmly thereof; but
had been sent to Fort-Wttham, iu order to bring
a notary from ihence, to take a protest against
Glenure upon the day foltowiog :'^ and as that
part of his evidence is confirmed by the n&u-
nel's letter to Charles Stewart, produced by
the prosecutor ; so the remarkable haste with
which John Beg Maccoll went to and returned
from Fort- William, clearly shews, that it wfta
no sham errand, but that the pannel's real in*
tention was to proceed in a l^^l way, by
taking a protest against Glenure, in case be
should attempt to execute the ejection.
The next circumstance chained in the ]il>el
ia, That when John Mackenzie informed the
pannel of the murder, he appeared no waya
coocernetl nor surprised ; and that neither he,
nor his family, went to look afier the dead
body.
But as this circomstanoe is extremely tnflingi
so the first part of it is clearly disproved by
the osth of John I^Iackenzie, Gfenurc^s servant,
who deposes, *' That immediately atler the
murder, he went to Jameti Stewart's hou5« iu
Duror; and James seeing him weeping, ask e<l
what the matter was ? and the deponent told
him, his master was kilted i whereuiHin Jamea
Stewart aaked him, by wbom» and how it waa
doueP To which be, tbe depooHit aniwere4»
tbat be did not know by wboin £ amt belieroit
231] 25 GEORGE 11.
It to be a shot from a gran or pistol.*' And
further deposes, ** That when he satr the pan-
nel at his house in Aucharn, as aforesaid, the
pann^l H-riinj; his hands, expressed great con-
cern at what had happened, as what mij^ht
bring inn«»ccnt people ti» trouble, and prayed
that innocent people might not be brought to
trouble." And, to the same purpose, the said
John Beg Maccoll deposes, '* That, when John
Mackenzie informed the pannel of the murder,
he said, It was a dreadful accident, and he
was afraid it might bring trouble on the
country ; and appeared sorry tor what bad
happened.*'
It is indeed trne, that the same witness
has deposed, ** That neither the pannel, nor any
of his family, went near the dead body :" but
as this IS a circumstance of no manner of
weiglit ; so the witness has accounted for it in
a Tery natural way, viz. That as the deceased
and the ]>aimel had not been in good terms
together, the pannel did not chnse to go to the
place where the hotly lay ; and more espe-
cially as he knew that some of those who were
to meet Gleoure had arms, and it was impossible
to know /what unreasonable lengths their re-
sentment might carry them : at any rate, it
shews bow much the prosecutors are pinched
in point of argument, when they are obliged to
found upon it, as a circumstance agpiinst the
pannel, that he did not go from his own house,
which is about two miles distant from the place
where the murder was committed, merely to
assist at the funeral of a person to whom be was
DO-way related.
Theftfth article charged in the libel is,ThA,
tipon the second day atUr the murder, the
pannel had sent five guineas by the nackman to
Allan Breck, in order to enable bim to make
bis escape. As to which, gentlemen, I do ad-
mit, that, if at this time the pannel had been in
theknowlc<lge that Allan Breck was the mur-
derer of Glenure, his furnishing him with mo-
ne^ in order to enable him to mako his escape,
might have been considered as an offence de-
serving punishment. At the same time, how-
ever wrong this would have been, it might have
admitted of an excuse, from the connexion and
relation which the pannel had to Allan Breck.
And it is now proved, by the concurring testimo-
nies of two witnesses, that the pannel had been
left his tutor ; and therefore it is much doubt-
ed, how far the pannel's sending money to Al-
lan Rreck, though be had known him to be the
murderer, would have been punishable.
But however the law might have stood upon
that supposition, it will not apply to the present
case. The pannel denies he knew any thing
of Breck's being the murderer : and as he was
well acquainted with bis particular circum-
stances, of which he has now brought full evi-
dence, by the concurring testimonies of many
witnesses, that he bad been first a deserter, next
a rebel, and was then in the French service ; 1
conceive it was noways criaiiiial in the pannel
to advance this trifling sam, in order to eoa-
JMf bim to make hit ctcape : h wu ddng no
Trial of James Stewart^
[sse
more than what any good-natured man would
have done to his friend in the like circum-
stances : and hard will be the case of the pan-
nel, if he should be condemned merely fordoing
a good-natured deed, which had nothmg crimi-
nal in it ; more especially as he had reason to
believe the message which was sent him from
Allan Breck, importing, that he had no acces*
sion to the murder, but judged it prudent for
him to leave the country, in respect of his par-
ticular circumstances, explained as above.
And inileed bis majesty's advocate does not
seem to lay much stress upon this cnrcimistance
by itself: but then be has attempted to rear up
certain arguments, tending to shew that the
sending of this money must have been in con-
sequence of a previous concert with Breck.
And, in the first place, it has been said, that the
pannel could not have known to have sent the
money to Roalisnacoan, if it had not been ia
consequence of such previous concert.
But, with submission, there is a very satisfy-
ing answer to this objection, viz. That upon too
day after the murder, the pannel had received
a message from Allan Breck, informing hhil
where he was, and desiring him to send whit
money he could spare, to enable him to make
his escape. This is distinctly proved by the
concurring testimonies of no less than four wit*
nesses, whose depositions, as they connect with
one another, fall now to be attentively con-
sidered.
Katharine Macinnes deposes, <' That, in the
eveninc^ofthe Uth of May last, the dq[NmeBt
saw Allan Breck Stewart at a goat4ioiue in the
moor of Ballachelish, afler Glenure was killed :
that Allan Breck then asked her, what was.tbe
occasion of tlit-^ stir in the town ? and that aho
told him, Glenure was murdered : and farther
asked her, who might have committed the
murder? and that she told him, she did nol
know : and that the said Allan further deairid
the deponent to tell Donald Stewart in Balla-
chelish to go to the pannel, and desire him It
send the said Allan money : and that she d^
livered this message to Donald Stewart that
same night ; and that she told the said DooaM
Stewart where she saw Allan Breck."
And Donald Stewart, the next witnest, d^
poses, <' That, upon the evening of Thursday
the 14th of May last, about night-fall, Katba*
rine Macinnes came to the deponent, and toM
him, that one without wanted to speak to himi
that this message came to him in Balhicheliih^
own house : that, when he went out, the nid
Katharine Macinnes told him, that it was Allan
Breck that wanted him, and that be was a little
above the house in the brae : that the dtponeol
went up to the brae, and met Allan Brew^ who
was then dressed in a great coat, and a dark
short coat under it, with white metal buttom:
the deponent told him of the marder, and said,
it could not be but that he, Allan Breck, wap
about it : to which Allan Breck answered, that
he had heard of the marder, bat had no hand
in it : to which the deponent reptU, he ihi
■ot bdiefe bim: that the aaid AU«n "^
I SB]
Jiif Murder,
I lo!d the Jcponent, he was going iniine-
lA Itavc tlie kirr^doin, was very scarce
: tUeii for KoaUijuacoani
It to acquaint ihe pannel^
m mtiW to koalisndooan, aud desire
IfmmWe to aenU hitn money there ; aoil
nrtit ihtfti promised to acqunuit J.imes
of Ib^ abore mci^satre : that Allan
he bcUef4'd lie would be siispecteil
If tbe Munier -, and upon tliat accouiili and an
bt WM» a dtf*L'rter Jurmeily from the arniy^ it
vaa iMremry for hiftt to lejixt the khi^dum :
aft**- '••- 'uiTersation wiib the paunel
re, he Uelif ered the above
Cc 1,^1^ .x.aii Breck to the pannel j and
bi»el did tiot say whether or Qot he
I IIm" iDoney ; and this conversation
about tpii o'clock in the t'oreooon of
« t^tli of May last; and that there
Fms ttiliiiljr |ittf»ent/* And further deposes,
1 " Tb^V 9yon the deponent's delivering the
r from AlUn lireck to the pannel,
llie p«ftiict aalEtd why AUosi Breck himself did
I Tity, if he wanted it? To
I, to the best of his remem-
rrjjiiL^i, lutii Allan Brtfck told him, he
f hf 0ii<|ie€ted Ibr the murdpr, and was a
'■ '* " jninoelunsweredi That
1 4 reck was not guilty of
- — uif the above coDversa-
itb the ^nnel, Alexander fe^tewart^ Dun-
•tfimcli» avid several other possessors
" iruch, were in the adjoining field
ban at such a distance, that the depo-
^aumol llitok they could hear the above
I Uir depositions of these two wituesse<?,
I c^tttkfct exucily toqctlier, it is disfinctly
Ci'm what ttmniier the: pannel came to the
lerfff^ of the pface where Allan Breck
|MMi)ietr deposition*) are further supported
•tiioo of John Stewart yoimger of
sb, who deposes, *' That, the day
Ari^ munler^ the deponeot wa» a* the pan-
■it> ^»0f , who, alter twelve oVIofk of the
4rf, My Ibe depiriHif, that he had a messajfe
nk BMmiiog from Allan Breck by Donald
INiwt, U» aend hint money ; but does not re-
■mfor wlieihtr the uanuel told him the place
«4«« br was Hifccted to ^letid it ; and the pan*
lal laid liic drpotieot, that he was resolved to
M«l bin Qioiiey."
A#d «ko by the depoattion of Alexander
4k«ifi in AiichindatTi»ch, who deposes,
L^fbai, loibe best of him knowledge, be saw
I9l9win tu Ballarhf'lixh and the pannel
, np9ti the «iar« lii*t* between Aueham
biiMlfl rr^^v "• ''*» trioruin(i of the 15tb
I Mid un^elf un*f at the time
grOQiiu . ..ii' other tenants of the
i leftme^ gfiitteutan on the other side has
f^Wiaed t^ (ixctpt n^niiiiit thin part of the
llkat ibr two uiittcr»at witnesses are
I with thr fatoiiy of Ballacheli«h ;
m of tlie facU, they are single
I I ii4 UiM iiiey do out entirely agree
A, D. 1752. [»SI
a£ to the Import of the message sent to Doiuilit
Stewart by Allan Breck.
J must acknowledge, I am under no amatl
difiicuTty to tind out any foundation for the first
part of the objection. U is neither pretendett
nor proved, that Halfachelish is at all related to
ihe pannel ; and as it cannot be said that any
valid objection could have been made againiit
Batlachelish himself, if he had been produced
as a witness for the paonel, far less does any
objection lie aq^ainst the son-in-law or servant
<d Ballachclish, ujion account of his betnj^ in
the interest of the pannel, of whicb» howevet,
of> sort of evidence has been brought. And as
to the second part of the objection, that there
are not two witnesies concurring* a« to the
wliole of the facts relative to the message sent
by Allan Breck to Donald Stewart ; — the
learned gentleman would do well to observe,
bow much of his own proof is founded only
upon siagle testimony ; anil then let biiu shew
cause, why his packman ond bouman, though
siogle wlfnesseS} should be credited^ and the
like indulgence should not be given to the
pannel.
At the sarae time it must be ob«erTed» that
the two witnesses who have deposed with re-
gard to this message, are not single ; they con-
cur as to the material part, that Allan Breck
had sent a message to the pannel, desiring him
to send him a present supply : and though the
two witnesses differ with regard (o the precise
words used by the maid in delivering Allan
Breck's message to Donald Stewart ; yet, aa
they agree in every material ctrcujnstance, no
regard ought to be had to IriHiog rariationa ;
and it is believed the gentleman on the other
side will admit, that the objection would hare
been full as stron^f (if not stronger,) if the twa
witnesses had both used the same words.
And lastly. As to the obfterration that tbe
witnesses differ among tbemselves, as to the
precise hour when the packman arrived at
Fort %Villiam, and demanded the money trom
Williaoa Stewart, it is noways surprising, that,
at so great a distance of time, wituesses should
not be altogether exact as to hours and minutes.
What appears most probable is, that William
Btewart and his wife have both mistaken the
hour, as, from their oaths, neither of them
seem to be positive with regard to that inatter :
and Stewart the packman seems to hare been
more attentive to thb particular, since he not
only swears a.<i to the time when he received
hit message from the pannel, which he says
was about 12 at noon, but also as to the time
when he delivered it to William Siewartp
which » as the packman says, was early in Ihe
evening : and as this agrees entirely with the
account which Donald Stewart gives of the
matter, when be says, •* That he dehvered
Allan Breck*s message to the pannel about 10
o'clock forenoon ;*' so it is plam there could be
no concert betwixt these two, not only as Do-
nald Stewart is above alt suspicion of that kind,
but also as the packmau has been kept under
cluse coafioemetit by Ihe piroMCUtori and bad
235]
25 G£ORGE IL
'Trial of James Sietoartf
[SS6
no opportunity of coDTentn^r with Donald
Stewart from the time of the murder till he
was produced as a witness : and I cannot help
thinking^, that it would sound strangely to say,
that the prosecutors should be allowed to give
credit to this packman where he swears fur
them, and, at the same time, to reject his testi-
mony where it happens to'make a^nst them.
The prosecutor nas been pleased te-lav great
stress upon the oath of John Breck Blaccull,
bouman ; and in particular upon that part of it,
where he says, that Allan Breck had desired
him to go into Fort William with a letter to
William Stewart, in case some money did not
come to him before next morning ; and this, it
has been said, agrees exactly with the mes-
sage sent by the pannel to William Stewart,
desiring him to give credit in S/. sterling to
John Breck MaccoM, bouman in Koalisnacoan,
in case he came to demand it ; and it is pre-
tended, that this is a clear proof of a prirate
concert betwixt the pannel and Allan Breck,
settling the manner in which he was to be sup-
plied with money.
But as the whole of this argument is founded
upon the oath of the bouman, deposing to a
long romantic story, in which he is altogether
nosupported, I am entitled in law to plead, that
bis oath is not to be held as le^l evidence
against the pannel ; more especially as it ap-
pears, from what has been already said, that
his evidence is disproved in one very material
article, in which he deposes to a very strong
expression, as applied bj^ the pannel against
Glenure, at a time when it is proved they were
in perfect friendship together.
Sdly, The oath of the packman, relative to
this article^ is as little to be relied on ; for,
though he has now ileposed, that the pannel
had desired him to tell William Stewart, not
only to send him 5l. but also to give credit for
the like sum to John Breck MaccoU in Koalis-
nacoan, in case he came to demand it ; yet it is
remarkable, that, in the libel, which it must be
preaumed was taken from his own mouth, no
mention is made of the 5/. for which credit wu
to bNB given to the bouman ; and therefore this
must nave been a new discovery made 1^ the
packman since printing the libel. And it it
further remarkable, that this part of the pack^
man's evidence is contradicted by the oath of
William Stewart, who expreasly deposes, that,
at the time when the packman delivered his
message from the pannel, no mention was
made of the name of Allan Breek ; and there-
fore no argument can be drawn from any thing
either the paoknan or bouman have said upon
this matter.
But, Stio, soppoaing all the bouman has said
to be true, viz. That Allan Breck had desired
him to carry a letter to William Stewart, it will
■ot follow, that he and the pannel were under
«ny previous concert relative to that matter;
for as Allan Breck was aoqaaintcd with William
Stewart, and as nearly related V> hin as he was
lo the pannel, it was natural for fain to have
to William Siewwt 10 aupply him ID
1
his necessity ; and therefore his doing so will
not prove that it was done upon any prevMua
concert with the pannel. From the commis-
sion Allan Breck had given to Donald Stewart
upon the Thursday evening, he had reason to
expect that the pannel would have sent him a
supply with the first opportunity ; and as that
had not happened, it was natural for him to
apply to William Stewart, who was his ae-
quaintonce, and as nearly related to him as tha
pannel.
The learned gentleman has been pleased
also to found upon the |>06tscript subjouied to
the panuePs letter of the 14th of Mayt to
Charles Stewart ; in which he desires, "That
William^ may send immediately Si. aterliufi
to pay lor four milk cows he had bought tor
his use at Ardshiet :" from which it is inlemdi
that, before the murder, the pannel was pr^
paring money to give Allan Breck, in order to
enable him to m&e his escape. But as that
letter and postscript do not mention the nana
of Allan Breck, nor to what purpose the mooej
was intended to be applied, the observation doep
not deserve any answer ; though at the saiM
time it clearly proves, that the most innoecBt
circumstances have been laid hold of, ani
reared up into argumente against the panncL .
Thus it appears, that no argument can bt
drawn from the droumstanoe of the papneTi
sending money to Allan Breck ; as it is nal
proved, that the pannel then knew that the
murder had been committed by him-; and far
less is it proved, that there had been any pn-
vious concert betwixt them concerning tbf
sending of that money before the murder wap
committed. And indeed, gentlemen, it ap-
pears to me, that the circumstonces which at-
tended the sending of this money, and in parti-
cohur the difficulty there was in obtaining il.
cannot fail to convince every unprejudiced IM>
son, that this horrid murder had not (eei
committed in consequence of any previooa can*
cert betwixt the pannel and Allan Breck ; for,
if that had been the case, it is impossible to be-
lieve, that the money would not have bean
more early provided. It behoved to occur tp
both parties, that money would be necaBsary to
enable the murderer to make his escape ; u4
as it clearly appears, that neither the one Mr
the other wu in cash upon Monday the lltk^ .
when the time and manner of committing thf
murder is supposed to have been concerted, it
is impossible, that this important matter of pm*
viding the money would not have been instants
ly set about, or that it would have been debiyei
till the hour when the execrable act wai to bo
committed.
The learned gentleman has been plcoMf
also to lay weight upon another cucumatanoa^
viz. That, some days after the murder, twp
guns were found concealed near the panoePi
house, one of them loaded, and the other OB?
loaded : and it has been insinuated^ as if tho
I unloaded gun wa^ that, wi|h whicl| AVob
Breck committed tbo imirder. .. B«^ thia^SHir
cttinataiioe ii raolly ao trifling, that it
yiiT Murder,
ftDSWir. ft is Wfilt known,
. of Ibe coiiDlry where tfie pannel
*~^ tbeDifirniingAci ; and lliere'
lyu inrpmin^, tlmt the g'utis
I atnj llmt orders were ^if cu lo
iinr when it m»s rnreseeD, th»l
I U> he ruftile by the military ;
^ oftlie giinff wag unloaded, It is
'. urim Agination, Troin th<!hce to
^^JeDC«, I hit thifi WAS the gua
amrder wis committed.
iff from the oailis of John
siigml MaccoHi, both witaesaet
k tti« prn««culor, that the little gun,
ifbuttil unhmded, was in such tdt-
rnl Itie lime when the murder
' tbftl if if impossilde it could hare
the tiead of any morial to use
ime supposed by tlie prosecutor.
klldeoMes, «'That be, the depo-
^ iU aoout guDs ; but heard Atlan
I Stewart the pannePs 80n> eom-
t ibst the guns were in bad
A. D. 175S.
[238
I depose, ** That neither of
f in ipood order ; that the targe or
~" m u«e, when goitjgr to he
al half* cock; and that the
t in mm to ftiap or miss ftre : that
a& old worn flint in it, and
thi9 flint in the taid gun,
m WM ia use to aee it sUnd at the end
prnd 10 ahore; but did not obsrrre
r il lUul m Hint or not, when he took it
^tli« ffjriiel ; that he knows no fault
I nttle pun had, but its being in
t^ mnd thut the lock was on the
twhid it on the Friday erening :
' carri^ it out odc morning,
miiffaTe with him thrice at a
d be sbot with it the fourth time^
r, captain IHvid Cha-
tCaoapbell concur io deposiogi
;• glut, ai the time when it was
:K bad order, that, for want of
) lock waa tied to llic stock by
tbetttfbrep tipon the wljole, I
» judge, how far it is poftsihli^
I order would hare been used
I aUDpooed by the prosecutor ; or
alieto carried back ao quickly,
MBi to the pannH's housie at' a
' pmon was on the waloh en-
I Qtirdcr.
of no tmportsncef that neither
' Douirat Maccoft siiw this gun, at
kV uid upon the
f ipf these two
^ il for itf so they
|iltri>- illan Stewart, the
,kaJ iIhiu tuhi liKrn,tli!it he hnd hid
el ;" and a* they atxoriim^jfy
h the day hiUowing^ it re-
III bf auspicioo, %vhich might
fr»m tho drcuuiMancf, tnat
hid witli tht r^t of ibe arms
I on the Tborsday evening. At the some timo
the pannel must beg leave to say, that it wouhl
rei^uire some explanation how it has hapjNfof^,
that the lock of this little gun comes to be now
inissiog, wbeo such care has been taken to pre-
serve every other particular, which could pos-
sibly furnish any hmidle for an ai^umeut
against the pannel. A good deal of weight has
been also laid upon another circumstance of the
like nature with the former, viz. That, ujion tho
day after the murder, Allan B reek's okithe*
were hid, in consequence of an order by tko
pannet^s wife t but as it is not easy to figure
how an order given b^ the panners wife should
bate any effect against the paunel ; so it is
humbly thought that this circumstance may be
easily accounted for.— It was foreseen, that ai
Allan Breek was about to leave the country,
he would be immediately suspected as guilty
oftlie murder ; and, as there was great reason
lo helieie that a search wouUl b« forthwith
rnade in erery place where Breck was in use to
visit, it was natural tor the pan net's wife tu
put his ctothes out ol' the way, that they
might uot be the ocoasioo of suspicion against
the pannel or his family.
His majesty ■ s ailvocate was pleased to found
upon the oath of John ftlaccoll, bouman, who
defMises, ** That Alko Breck bad said to him,
that the ttpprehendini^ of Uie pannel and his
son would not signity much ; but express^
some cN>ncern, lest Allan Htewart, son to tbe
pannel, might be betrayed by his own tongue.**
But as the bouman is only here deposing to so
exi»res9Jon of Allan Breck*s, when be was en*
deavouring to free himself from suspicion ; as
tlie bouman is at best only a single witness ;
and as the expression supposed to have been
ufwl by Allan Breck does not imply, that
either the pannel, or his bod, had been guittj
of the murder ; this circumstanee, supposing
it true, ought not to be regardt^l.
And here 1 cannot omit putting you in mind
of one circumstance deposed by Alexaoder
Stewart the packman, which shews pretty
clearly, that no regard ought lo be had to the
oath of the boum^tu; and b<^ides it ia single,
and not supporttid by other rvidencew The
packman de()oses, ** 'fhat the bouman bad de^
sired him to conceal bis carrying the clothes
and money to KoatJsnnroan -, told him that be
could not nrofc it agninst him ; and that he
could safely depose he did not d(>liver the
clothes to him, since he only pointed out where
they were.^' 1 leate to you, gentlemen, to
judge, what credit oaa be given to a whttlwi
whose principles were such, as to suppose that
perjury might be avoided by so poor an evasion.
It has been also said, *' That the panners
wife, his two son^« and his daughter, have, in
some things, contradicted eucli other, in tlia
d^cl.imtions made by ibem aereraily at Fort*
'fhtr pante' L help thinking it hard,
thai extiAJni nitiotiB made by his owo
family ahouiii mnti iweit received as erid
uguinst him ; more etpeeiaHy as it has
239] 25 GEORGE IL
bitherCo held to be an established principle in
•ar law, not only thateitrajudicial declarations
by third parlies cannot be taken, or received as
evidence a^nst any pannel, but also that those
^ho stand in the relation of wife or children lo
(he pannel, cannot be received as witnesses
•gainst him.
However, as these declarations have been al-
lowed to be read in conrt, though objected to
by the counsel for the pannel, he must ac-
qaiesoe in the judgment given ; but, at the
■ame time, I am fully persuaded, that, upon
perusing these declarations, the jury will be of
opinion, that the differences (if there are any)
are so trifling, that they can have no weight
against the pannel : andi though it should be
supposed that the wife or dau^ter of the pan-
nel, from a mistaken notion ot duty to a parent
and husband, who had been always indulgent
to them, have endeavoured to conceal that
Allan Breck went from the pannePs house on
Tuesday morning, dressed in a coat belonging
to the pannel ; yet, as it has been demonstrated,
it is hoped to your conviction, that there is no
sort of relevancy in this circumstance, it can
have no other effect, but to shew how ex-
tremely improper it is, that so near relations
should be examined against any man upon
trial ; but can never be used as an argument
against the pannel. On the contrary, gentle-
men, I cannot help thinking, that these decla-
rations afford a very strong argument for the
pannel ; for as no less than sixteen different
declarations appear to have been taken from
tlie |iannel himself, his wife, and children, (one
of his sons having been examined no less tban
five different times) it is really surprising that
so great a number of declarations, signed by
different parties, all relative to the same matter,
should agree so exactly together ; and, as all the
attention of the prosecutor has not been able to
draw from these declarations any thing which
can fix the most distant suspicion of guilt
against the pannel, it tends strongly to fortify
the legal presnmption of bis innooeuce.
As to the letter wrote by the pannel to John
Macfarlane, referred to in the libel, I am still
at a loss to discover what argument can be
drawn from it ; for as that letter (which was
wrote soon after the murder, and before any
advertisement had been published by the friends
of the deceased for apprehending Allan Breck)
contains an exact descriiitioii of Breck's person
and dress, and also of the phu;e where he was
roost likely to be found, it rather proves fur,
than against the pannel ; and it was but natural,
at this period, lor the pannel to express an
anxiety to have Allan Breck apprehended ; as
it appears from the proof, that before this time
it was the common report of the country, that
the murder had bera committed by AlUn
Breck ; and therefore it behoved naturally to
occur to the pannel, that tlie easiest and shortest
wsT to obtain bis own liberty, was to find out
and secure the person by whom the murder
was supposed to nave been eommitted.
The learned gentleman on tbe othor side
Trial df James Stewart^
[S40
still insists, that it is not proved, that any other
person, besides the pannel, had any quarrel or
resentment against the deceased ; and it has
been further said, <« That if Allan Breck was
the actor in the ronrder, he was only revenging
the quarrel of the pannel."
But the weight of this observation is fuDy
taken off by the evidence produced for the |nuh
nel. It is clearly proved by the depositioos
of Angus Macdooald, Duncan Campbell, Ro-
bert Stewart, and Charles Stewart, «< That
Allan Breck had sworn revenge against
Glenure, upon a belief, that he h«l given in-
formation against him as a deserter:*' And
though colonel Crawfurd has deposed, <* That
the deceased had never given him any such in-
formation ;" yet this does not at all vary tbe
argument, as it is undeniably proved, that
Allan Breck still believed, that such information
had been given, and upon that account bore
deep resentment against the deceased: and
therefore, supposing that the murder bad been
committed by Allan Breck, (which is not ad-
mitted) it will not follow, that it was done with
a view to resent any quarrel the pannel might
have had with the deceased; since it might
have been done with a wicked purpose af
avenging his own private quarrel: and, at tbe
same time, it is very proper to be here observed,
that tbe deceased had executed a warning, and
obtained a decreet of removing, against a mat
many of the tenants of Ardshiel and Locbid;
and if it is true, that in that |>art of the country
a step of til is sort is considered as a cause of
mortal hatred, it was, at least, as much so ts
the tenants removed, as it could poasiUy be la
the pannel : and therefore it is wrong in tba
prosecutor to say, that there was no ottier per-
son who had any cause of resentment against
the deceased, but only the pannel ; whereas it
is plain, that every one of the tenants who bad
been decerned to remove from their respective
possessions, had at least as strong a cause of re*
sentment against thedeccaseil, as that which is
libelled against the paunel ; and besides, I
might also observe, that it is |)roved, by the de-
positions of the two last witnesses produced
for the jNinnel, that one serjeant More Cameron
(who in that part of the country is known to
be of a most abandoned character) had threat-
ened to shoot G tenure, or to be upsides with
him, in case he should happen to meet him.
Upon the whole, gentlemen, I flatter myadf,
I have shewn to your conviction, that all and
each of the circumstances proved against the
pannel are such, that they can easily bear a
good construction, and might have happened
naturally, though he had been innocent of tbe
crime laid to his charge : and when to Ihb it is
added, that the character of the pannel in pri-
vate life, renders it highly improbable Uiat
he could have been accessary to so vib •
crime; that he could not possibly reap ny
benefit by it ; and that is proved by incontet-
table evidence, that, at the very time when tba
murder was committed, be was anxiously pnr-,
•aing another measure, which was utterly in-
HI] ^^^^gfififT MurcUr.
MtHHt Willi IteiQfipofition ofltis beiti^ any
WfiePMMiry to ibe murder ; I persuade my-
m IImI you will bt» ctreful to di? est your-
•toi •f mny tmpresflitODS you may have re-
Mfvd witboQt Jours ; lliat you will judge
«^lh» «f iilence itniiartially as ii lies lieforc
|««| •ad Ibftt, l»|Kiii the whole, you will find
'*" mil not giijUy of tbe crime laid Co his
A. D. 11S%
[243
^^„ A lime, ill case yoti shall have any
_„/ ill ftmlitig the pnniiel not g^^illy, or in
I jta tbAlt be of opinion, that tbt^re is a
^ «f idevfiQCV in any of the circum-
_i pmvcd agtioat Ibe paiinel, il is your
m rtCuni a Special Verclici* upon tbe
^ A ■pMJal renUcI uiuler the Crimtnal Lblw
_^d, li^eIIlt to diflfer efisentially from a
fcrdtct in the Law of En^fand. • In
» ft apcctfll tenlicl must 6t\a facts aoG
E of facts ; and witirre any toiitter is
miict submitted Lo the court for
kt point of taw, no loference of
I on the record, however strong
Bof tiio«e lacts may appear, can l>e
I hj Ibe eourL The conclusion result*
I tbe mrhole should be found anii slated
^nry. See Feake's Law of E?ideuce,
r tbe law in well lUted.
Ifl Seoilftisd, the lefpil guilt of the fact
I tbe pannel is established by the
ttHir o4' ret*^vancy before remitting the
i #'iili tbe hbel to the knowtedg^^e of the
the ((uettioii tefl for their conii-
I iii^ wbelMr the fact charged baa been
' •• A e|ie<!tal v«rdiet/* thy% Mr. Bume (Com-
■■I ■nits. Trial f«tr Critneti foL 9, c. 16* pp.
Ml flMt vt v^i J " i« a return of certaia tiicts
w CMMMMttncd ai proved, without the iddi>
Iff aay neitcrai inference from them, with
Ibe pennePs guilt of the crime ti-
ll n lol^reoce which is left to be made
f JiMget ftcx»rdiaf to his opinion of the
cmpiructiofi and cberaeter of the faelt
Am In4 before bim.
•• it il orcieafy that the vertJiet make a
cbir asd ftbaotaie return of ceriaio facht fti
ttOl a. retum in a dotibtful, or tirovi-
, er alternattve shape, or such as leaves
I svfMrmiiB matter of fact still to be eu(|utred
Mi by tbe Court. For to settle the whole fact
, Slbe frroperand peculiar province of the jury ;
ibtt done by any other autho-
Llf ibey eliidi leave it in any ways uncer^
Ho^i BQ uncertainty may arise in se<
I weyt, AinI flni Ibe jury may report the
^ III meli » forai, ae to leave tt doubtful,
* tbe criHi* in queslian has been com-
Aebftppeoed in the case of An-
b vrbnee trial for u^iug fahe
iiieaauf«s, the jury found his
laud bii measures short, but found
for ipetufying the deifrce of" the
itbctber en great as to imply dole^
Mlyi and such as might be
baeriititttfitioQ. In like
facts proTed for and against the pannel ; and i
in that case you ought to he particularly care- 1
ful to omit DO circumstance which mty bavftj
tkuy tendency to exculpate the paoneL
Sunday, ^4 September^ 175^, (betwixt 7 and
8 o*ctuck in tbe morning*)
** The Lords ordain the Assize im^tantly to |
iDctose in this place, aud to return their Verdict]
upon Monday neit, the 2ritl» current, at 11 1
o*clock before uoon ; and adjourn tbe Courl^ [
and hail diets thereof, till that time ; and ordain
the hail fifteen assizers there to attend, and tbe
pannel to be carried back to prison,*'
tier, an alternative return of facts, may some*
times issue in the acquittal of tbe accused. ;
Thus, in a trial for sheep-stealing, tbe pannel
cannot have judgment as a thief, if the jury {
say, that ihe sheep io question were stolen of '
had strayed ; bow full soever the verdict be in I
liiiding the pannePs poi«esi$iou of the sheep,
and other presumptions ol' his dishouesiy and *
evil conscience. Or again, ia a ca^e of rob* 1
bery* as little is there a good conviction, if tho
verdict bear that the pannel assaulted A. B.,
nneaning to rob him, and that io the course of |
the scufHe, his pocket-book f itht-r was CHrried I
off by the panne), or fell to the ground and wds
k>«t- And here, I may refer to tbe trial of ^
William and James Carruthers and others, tii
1731. These men were iudicted on a certain
statute, for deforcing the revenue > officers, as
also at common-law, for on asanutt and robbery,
having carried oif certain armis and other things,
belonging to the officers. Now as to this ar»
txcle, the jury * fand firoveo that the above Ho*
* bext Kneall aud his crew, at the time end
* place libelled, brou^^ht iu some tire-arms to
^ tbe house of the above JuUu Ilitl, aud thai
* they were lost, or taken aw ay by the foivsaid
* mob," Hentenee passed on this verdict, for
seven years transportation, in terms of the sta^
tute, as on a conviction of the deforce me ut only,
and nothing more.
*^ In like manner, on an indictment of more
peraons than one for the same facl* the verdict
!• faultyf if it find that the thing was done by
one or other of them, and do uot atford the
means of discerning which of them was truly
tbe guilty person. And on this ground chiefly,
aa f tuke it, proceeded the aLnioUitor io the
case of Buchanan and Lilburn in 1771, where
the jury couvicieil the panoels in the precise
terms of their own confession, which was thus:
* That the panoels, irritated by the continued
* attacks of the dog, and having each ol thera
* the spit of a jack in their bunds, both or either
^ of them in tbe fray, gave a istroke or stroket
* upon tbe head of'^ the said Joseph Alurtme^
* with the spits in their hanils, of which stroke
* or strokes, and tfie wounds thereby giieii, tbe
' said Joseph Martine died the day tolbwiug,
* in tbe house of the said liobert Andcrrson.* It
could not be determines I ou this verdict, whe*
tber both pannds had struck Ibe deceased, ^r,
R
Ur\ 25 6E0RGB IL
the paoDel James Stewart Oaihy, ift and
mirt, of the murder of Colin Campbell of
Gleiiare. In witnesa whereof, our aaid chan-
cellor and clerk have aobscribed these presents
in our uames, and in our presence, place and
date above- written.
(Signed) " Colin Campbell, Chan,
«« Ja. Campbell, CI."
After readings this verdict the Court proceed-
ed to i^ve judgment; which, beiae written
down in the hm>k, and signed by the whole
judges, was read by the clerk, and in the usual
manner, repeated pronounced by the dempster
to the pannel, as follows :
to ioclose^l havioff been pronoiinced by the
three judgpes, the lord Elchies said to the jury
words to this purpose, — That as they had been
much fatigued by the extraordinary length of
the trial ; and as the case now to be left to
them, was of the utmost conse<^uence, no less
than life or death, it deserved their most serious
and deliberate consideration: and that therefore
a: long time (full twenty-seven hours) was
given them to return their verdict And his
lordship added, that he thought it might be
very proper for them to refresh themselves
with sleep, before they should proceed to con-
sider the case, and make out their verdict ; for
which he said, couches, &c. should be ordered
into the place where they were to be inclos-
ed." Upon which the author of the < Sup-
plement' remarks, «* It would, doubtless, have
oeeu commendable in the jury, if they had
complied with this seasonable advice of the
lord Efchies, considering that they had now
been sitting^ in court about fifty hours without
sleep; which as they wanted much, so after
being refreshed with it, they might have deli-
berately and with their eyes open considered
the case of the poor pannel. The jury, how-
ever, were pleased to refresh themselves only
with wine and the like, and immediately
thereafter to fall to their business, with the
same drowsy noddles ; in which they made
such dispatch, as to have it dressed up and
ended soon after eleven o'clock of the same
forenoon ; a time shorter than four boars at
most.
<« O horrid to relate 1
" About man's life they d|d not hesitate.
" In the afternoon of this day, Mr. Stewart
younger of Ballachelish meeting Mr. Camp-
bell of Ederline, one of the fifteen, on the
street of Inverary, told him, that every one
was surprised at tne dispatch the jury had made
in examining <60 long a case; and asked Mr.
Campbell, How it was poanble they couM do
so much in so short a timer "" •• ^ —
Campbell answcKd, We M«
nipalory proof: mIBip^^
if IVwbtehllr.
Trial of James Stemrif
«'Thtt Lord Justice Qancirat
Commissioners of Justiciary, bavinip cc
dered the verdict of assise, of date the Mth
current, according to the present alile, rotonM^
this day against James Stewart, paancl, wbero*
by he is found Guilty, tfrt and part, of the
murder of Colin Campbell of Olenure ; they,
in respect thereof, by the month of John Mm>
kenzie, dempster of court, decern and odjoigo
the sakl James Stewart to be carried hock to
the prison of Inverary, and therein to lymilo
till the 5th day of October next, acoording to
the present style ; and then to be delivered mm
by the magistrates of Inverary, and koepcrif
the said prison, to the sherifT-deputa of AnnfB»
shire, or his substitutes ; and to be by mim
transported to the shire of Invemeas, and do-
livered over to the sheriff-depute of Ion
or his substitutes ; and to be by them
ported to Fort William, and delivered
to the governor, deputjr-govemor, or oov-
mander in chief, lor tlie time, of the aald gar-
risen, to be by them committed to prison ia tht
said fort, therein to remain till the 7th day af
November next, according to ihepreaentatjle;
and then again to be delivered over to tho
sheriff-depute of Invemess-sliire, or hit aolili-
tutea; and to be by them transported Orwllw
f^rry of Ballaclielish ; and delivered orw ti
the sheriff- depute of Argyllshire, or hia rab>
stitutes, to be by them carried to a gibbtt to hi
erected by the said sheriff ou a conapiciieoi
eminence upon the south side of, and nearti
the said ferry: and decern and adjudge the
said James Stewart, upon Wednesday the 8lk
day of November next, according to tho pra*
sent style, betwixt the hours of twelve at noiB
and two afternoon, to be hanged by the sack
upon the said gibbet, by the bands of an exe-
cutioner, until he be dead ; and thereafter ti
be hung in chains upon the said gibbet ; aol
ordain all his moveable goods and gear to b^
es«;heat and inbrought to his majesty*! 'oat}
which is pronounced for doom.
(Signed) " Argyll.
"P.Grant.
*' Ja. FEBOiuoif.**
AiWr which the Lord Justice- General apoke ti
the panud to the following effect:*
James Stewart, yon have had a very kmg
and most impartial trial : you have been pro-
secuted with all the moderation comdatent wiA
the crime you stood accused of; and jroor
counsel have defended you with great abiii^i
and with decency. The jury have unaoinooi*
ly found yon guilty of having been acumiiy
to thia horrid murder, which, upon duo com.
deratkin of all drcumstancea, acoma to be ac?
eordin|;jo the evidence.
proof agaiofj
— » naHMl,iBea aiiffiyt9le.3
MUMthoMliti miM
J^ Murdtf*
It make yM< , how
Di !■ of wltieh )ou uUud cnii-
! tod moH intamfius iinircler eiiiJ
»ii« tn tl^Cittoce of the laws of Gofl
> sjt^ Ibt cuinmon |)nnctp1es of buma-
\ Iflmitidd oi^eeircmnsliince mote, which
I ycm? guih | ami ihat i:j^ your iogra-
Iki tlial gsolLcinani who^ by your means,
A* ii»Of«* Yon tiari, by your artilices,
» kift oon^QOcTt tit tore he had time to
I Mfbnueii of ihc circumatanues of the
iifwiuoh lie wa« appomted steward. This
you tbused Bt> mucbf as to raise
v^wanmmy from the tenants for yoar own
I : but whi'u, in obedience to the orders
mpomrs, he was removing you and others
hm Hxwm they t)id possess, then, accord*
tiM oialioe at way t pre? ailing in unctTi-
ifttUef tli« Highlands, voiir inveterate
I : ao that it may he said of you,
jm taA e«t his bread, and then abed his
r y«dr crime from its true original
rdl uae the words of our tlatute*bcHik,
iwtJD't f 'I '-^; and lawless opprfis-
fcmd i Mauds during* several
'7**'- ,. liie laws made so loncf
r, and iiifurced in 16'J0,
i._ . ' thecliiis w^relKiuud to dc-
^f«r timtai^, as securities for the peace, who
I even to li€ put tn drath, if no redrew was
To tht« ' !d that obntifjate and
titicyr«l>U inand a>ersioiU<» the
I in levckiil Hi^fhland c)an«i, and in
' jour own, errr More the happy Ke-
^ eod the establish meat of the crown Jo
4t Fr»l«9taiit line,
Ittibe yiear lTir>, there broke out a mr»9t
Wivf^l and uoprovoked rebeUion, soon after
^ aacmkia of bis late majesty to the throne ;
• «liiii tli« pari your clan acted is well
>B0m^m niAiiy hetM^ i^- -^ '>i*esenl tliut were
of their cu ^axI of «h(» rd>el
1 . a. This I mj-
A royal indemnity
FaBfybii»ed uv o Ireaaoos thi^n com*
but, in the year 1719, your clan, un-
mI of Ui«ir hves and fortunes havinjv bteu
k only two year* before, did og^ain
y aitd affiiMted a forri^ enemy
V MU are saiu to have
ii time very \oun^«
iiR' jcMless spirita of the
<Tt again pron^pted them
'' r - "i ^. you and
»aiiJi**
)«« cbifi
it impious
iimcf -
.^i *t-i^.i to the last.
IW!
lirsi permitted you
v^hirb has posijibly
nail
bo»
of your crimen.
Mf
<eu of the Al-
V; "^^ **
d Up a great
^■^tb'-'ccin
Ktnij, who, with
K
^ and with
B
^ one blow,
pii tad to aU yoorn )•
l^» 1 ^IcmpUf.
A. D. 17J^ [359
If f9U bad lieeti successful in that rttbellknt,
you bad been now tj'iumphant with your con*
tcdemtcs, tramprnig* upon the laws of your
country, the liberties of your fellow*siibjcctSy
and OD the Protestant religion : you mi^ht bare
been g^if log tbe law, where you now have re*
ceived the judgment of it ; and we, who are
this day your judp^es, might have been tried
before one of your mock courts ot* judicature,
and then you might bare been satiateil wtib
the blood of any name or clan to which you
bad an cTeriion.
I have thoug-bt it my duty to pot you in
mlud of these (acts, only to mark out thoM
wicked paths which have led you to dettme-*
tioo : and though you dou't now stand accused
as a rebel I nor am I permitted to call yo4i a
traitor* because bis majesty's undeserved
mercy to you did several years ago restore you
to the state of an Innocent man ; yet 1 may
say, with great force of truth, that this murder
iiafi been visibly tbe effect and consequence of
tbe late relietbon.
Vou may yet, during" the short time yo«
have to liie, be of great service to your friends
and neighbaui^, by warning them against thoM
principles and practices which have broui|^
YOU to this untimely end ; and may the Lofi
nave mercy upon your soul \^
Immediately after sentence of death had
passed upon James Stewart, and tlie Lord
Justice -Gene rat had ended hi) speech, tbe
panuel said^
*• My lords, 1 t^imi ly submit !f) iliy bard sen-
tence, 1 forgive* the jury, and the witnesses,
who have s^woru several things falsely ajfaiuat
me : and I declare, before the great Uod, and
this asditory, that I bad no previous knowledge
of the murder of Colin Campbell of Glen ore,
and am aa innocent of it as a chikl unborn. I
am not afraid to die ; but what grieves me, is
my eh (j^racter, that after- acres should think me
capable|of such a horrid and barbarous mnidert**
ThereaAer the pan n el was ordered back to
prison, and executed according to his sentctica;
and the morning before be went to execulioQi
he declared to the sheriff his ionoceoco of the
tact for which he was convicted ; and did tho
same at the gallows, with many protest atiooi
of ilia innocence, calling God to witoeas thd
truth of what be deiilared.
Of this case Aniot^ in bis Collection of Cn*
ntinal Trials, has inserted an abstract^ to which
he has subjoined tbe following observations :
** The guilt charged a£:ainst tlie pannel is,
that he was accessory to, and art and part in
♦ Wh"" ihp sentence was pronoanced
agamRl J ^^art at Inverary, tbe ^ntle^o
menwih i the trial tbe preceding dayf«
having been ail lircd with il» did not lake notes
tbe last day : but, as far as tbef cau recollect,
the sub««tance of what tbe Lord Justioe-Geotr^
then said to the panne), was M is tbove ^
down. Fifrm€r Edithn,
S51] '25 GEORGE IL
conspiring the murder of Glenore, which was
perpetrated by Allan Breck Stewart. There-
tore, if there be not legal e? idence that Allan
Breck was the murdvrer, the charge of guilt
▼anishes, and it becomes perfectly unnecessary
to consider the second proposition, viz. the pn-
soneKs accession to the murder alleged to have
been committed by Allan Breck.
'* The only positive evidence relative to the
perpetrator of this murder, is, that it was com-
mitted by * a man with a short dark coloured
* coat,' and this is, in some respect, applicable
to Allan Breck, as be was seen on the day of
the murder, not far from the place where it
was committed, dressed in a dun coloured great
coat, and dark short coat. Allan Breck did
frequently use threatening expressions against
the deceased, and he did display the most in-
dubitable signs of tear and guilt. But it is cer-
tain that his guilt, as a deserter, whs heighten-
ed by his having been in the rebellion, and
that bis life was thus forfeited to his country ;
and the reader must determine with himself
whether Allan Breck's fear of being apnre-
kended proceeded from the desertion, of which
he was notoriously guilty ; or from this recent
murder, of which, even mdcpendent of guilt,
he had reason to conclude he would be sus-
pected, on account of his connection with the
family of Ardshiel, and of his fugitive and wan-
dering life.
" The circumstances from which the prose-
cutors inferred the prisoner's accession to this
murder, may perhaps lie 6t enough to excite a
suspicion of guilt in the speculations of the
closet, but I apprehend them to be in the high-
est degree improper and dangerous, to be pro-
duced as evidence to affect the life or fortune
of m prisoner in the tribunal of justice.
) <* The circumstances were shortly these : that
Allan Breck, a kinsman of the pnsoners, paid
him a visit three days preceding the murder,
sat with him and other company at supper,
and slept in a bam : that Allan Breck put off
his French clothes, dressed himself in a short
coat belonging to the prisoner, or his son, ere
he went to work in a field of potatoes ; and
next morning, when he lefl the house, went
off dressed in the short clothes, and let\ his
own ; which, by the bye, he had done upon
former occasions : that the prisoner, upon the
search which was to be made for the murderer
of Glenure, supplied with money, for the pur-
pose of making an escape, his kinsman, Allan
Breck, a fugitive, and a deserter: that the guns
about the prisoner's house were hid, in a coun*
try where it was a crime to be possessed of
arms : that the prisoner had used repeated ex-
pressions of resentment and of 'vengeance
against Glenure ; and that, after the murder,
Allan Breck expressed his apprehension lest
the prisoner or his son should be betrayed by
their own tongue.
** These are ttie amount of the evidence against
the prisoner, which resulted from a scrutiny,
by no means warrantable, into his life and con-
duct. The rigorous durance in which he him-
self was conQncdy and his son and servants being
Trial of James Siewart,
\93l
kept close prisonen in separate ■partments,
have been already mentiooed. His repositories
were thrice searched by the prosecutors rela-
tions without legal warrant, and attended by a
military force : and every circumstance of his
life and conversation, for a period of two voan,
was raked into with the most invidious industry.
But this last mode of extraotiuj^ evidence, and
the result which flowed from it, require to bt
particularly considered.
*' Where there is no positive evidence de-
monstrating the author of a mischief which so
individual has sustained, menacing ezpressioM
may be justly admitted, along with other cir-
cumstances, as a link of the chain of circan-
stantial evidence a:|;ainst a prisoner. But, to
lay much stress upon general expresskms of
resentment, and even of vengeance, such as,
* I wish he were hanged ;' * he is unworthy to
* live;' ' I will cause him to repent it,' or the
like, would lead to a conclusion equally false
and fatal. In social intercourse, the energy of
our (expressions of applause or of censure, of
gratitude or of resentment, is often proportioned
to the strength rather of our language than of
our feelings. But, if a deep and mortal
he meditated, I apprehend the deviser, in
of suiting his expressions to his purpose, v
endeavour, by the smiles of his countenance,
and the smoothness of his language, to conceal
the rancour of his heart.
** Let any person who has laboured under
embarrassed circumstances, who has felt ibr
the distress, for the impending ruin of his ft-
mily'; «»lio has been chastised by the rod of
power, reflect upon the expressions of resenl-
ment and of anguish which may have escaped
him when his heart was open to a friend, wlica
his passions were inflamed by liquor; and
then let him condemn (if he can) the prisoner
as a murderer, on account of the expressions of
vengeance which arc proved against him in tht
course of this Trial.
** The only part of the evidence affecting the
prisoner which makes a serious impremoo
upon me, is what fell from Allan Breck in tbo
wfK)d of Koalisnacoan, that he was afraid lest
the prisoner's son * might be betrayed bv bis
own tongue.' * The following reasons, how-
* *' Unless that rule in the scriptures, of visit-
ing the sins of the father upon the children, is
to he inverted by our law, and the sins of tbo
children are to be visited upon the father, I
•entertain a faint suspicion that a mistake has
been committed in the course of this Trial, mod
that (if any of the family was guilty) the pri-
soner has been hanged instead of his son Allan.
The circumstances of the little gun in the de-
positions of DugalJ and John Beg Maccolls,
and Allan Breck's fear lest the prisoner's son's
tongue should btrtiny him, afford a more point«
ed evidence against the son than any which it
adduced against the father. Besides, it ii
worthy of remark, that the prisoner's son bad a
coat precisely of the same make and ookNir
with that which Allan Breck wore on tht day
Glenure was murdered." Arnot.
f(ir Murder,
» doubt llie saleCy ftiid propriety
I •» ej|(ff^%ioti bL this 1 lie t'sutt*
Dg flwuy the life aru! fa me of a
The %vilne!is who <Je|i«sed lo ii
lirfpr llie ruil uf power ; he had been
c!o!(e cuMody in Fori Wtlham, aod
railed that he himiielf might be
Iriiil for thiii murder. 2do, The
an IVoiij Allan Bre<;k*8 exprea-
Igr fioin miscortceptioii, or want
fi' ) from the mistake
itcd the eFidenoe,
In uj'iifji j;»r>i (iaiereoce in ihe coii*
|l>r tlrawo rriMii Alhtn Brc^rk^a words*
, if AUan Breck, instead of laying
tJbe prisoner's son * might be
\%y Ilia own (on^uc/ did stiy^ lie wa«
Einer'a son * might Hill a\ictiio to
lie ;* ill this case, Allan Breck
aid no more than >%httt was nolo-
i_»Dil true, viz. that tJte resentful
~^ by the prisoner and hia son
! would hear hard upon them,
I, upon the Mbole, i^KiiaU^ out the
two aUerntions being: adopted in
al (aw of Scotland : Imo, That the
jliould here, aa in £nj;tand« have a
Dging a certain numljer of llie
|]gned« 2do, I'hai, in
lof Scotland, where the di^trict«
tribes or clans, between many
ale feuds did subsist, a prisoner
I in bis power to say, ^ I who am
"* not be tried by a jury of Camp-
\ CDunler of a Campbell ;* or, * I
IBccr of e&cise^ will not be tried
sorfier of a stimg^ler, to a country
it Itiv merchants^ fanners, ^c. are
And, OS the lawyers for the
' it til Ibeir power to bring a prisoner
liltaCricI where he lite^* or where a
[ftiettn committed^ to stand trial before
V at £dinhnri;h| so
ive it JO his power
^pfrjimittH wtiicb may he enter-
lliai to a iiarttcuUr distiicl« and to
1^ tried at bdinburgb.^'
A. a 1752.
[251
Ho wing paasag«a are extracted from
a^fikflBCfil (o the Trial of James
happy periodi until the fatal
. James Hte wart beliavfd, in
, &a like a good Cbri^tian^ that liia
1 were forced to commend him,
*ij him, bur the thoughts of
kind wife, with a pretty nu-
|r« not provided for ;* and a rea-
for his awn character, because
ignomitiJous manner of his
) altrgeii eau«e given fur it. To
' Niiirrrt:4|/», six year* ago, had left
Mate; a^id tb« ejtpeooe of ihU trial
lallliejsaii aciiiurrd siaoeJ' jiJuppU
die, he said, on a gallows, for having actal a
part in an assassination, was, he lielieved, what
few lh;jl knew bim could iver have thought
was to be his end. This he regrettrd at firti
to bis 1i lends who came to see him in his con^
demned ii^tate ; but atier being assured by tW
gentlemen who hail been lits counsel, that they
hnd k\\ kept notes of their pleadings, in ordet*
io the pulilishinij; bis trial, be became quite sa-
liaOed and easy m bis mind. * If that shall be
* dt>ne» (said be), ihe world wilt have an op-
' portuiiiiy of seeing nud judging oi' my sharft
* in the murder, a crime I ever abiiorred, and
* the jtistice done me in the tria!.* Ru ipim
nunc hquitur. At bit receiving the holy sa^
ciameni, from the bands of a worthy clergy «
man, the necessity of cod Cession and repent*
ance was strongly set forth to him, and the ques-
tion then put, * Are you guilty of the murder
'of Gleuuref* He answered, in a mosl
solemn manner, * 1 am not guilty of it, even in
* the smallest degree; If J be, may this which
^ 1 am ttbuut to do, tend io my eternal d;imna*
* lion !* In a word, he gained the esteem ami
reigard of every body ; and his military guard
admired and pitied him so much, that many of
Ibem shed tears at his death; thereby con-
viucing me, that tlieir hearts are not so caMoiDi
as is commonly thought. 1 appeal to them*.
selves if this be not true. But let the dyinif
man first speak Ibr himself, when come to the
last period of his hfe. The hour of death, you
knovr, is the hour of truth !''
The DviNG Speecu of James Stewart.
My dear countrymen ; The several mottrea
that induced me to offer the world a narrative
of my uDcommoo misfortunes, are as follows:
Fii^t of all, My itinoceoce makes my suf*
feringa easy, and alletiates all afflictions, be
they never so severe in the eyes of man.
Secondly, That my silence upon thia ooca*
sioD might uot be constructed to my prejudice
by my prosecutors ; as my silence at the bar,
when i was hearing some of the evidences aver
untruths against me, was said to have pro-
ceeded from conviction of guilt, and that if [
should challenge them, they wouUt say more
than they did.
Thirdly, In order to let the world know the
liardships put upon me since my coaiinemdnta
contrary to the known laws of this nation ;
which effectually disabled me from maktug
many defences 1 otherwise might proiJuce,
Fourthly, That it came to my ears my pro-
secutors had spread a false report, that 1 made
a confession of that crime when in Inverary
gaol after receiving my ban I sentence.
Fifthly, That I might offer my public advice
to my friends and relations u|>oa this uielatt^j
clioly occasion. \
These are tfie chief reasons for the followrtn^ ^
narration of facts ; which 1 hope lo make
appear so clear, as will convince the unpre* 1
jvidieed pari of mankind how much 1 am iii«
jured, and that I die, as I endeavoured to live,
an bouest man.
£53]
25 GEORGE II.
Trial qf James Stewart,
[9S6
As to the lirtt article, of my beine art and
|»art, accessory to Glenore's murder, I poii-
tiveiy flea y, directly or indirectly ; nor do I
ktiow who was the actor, further than my sus-
f icioa of Allan Breck Stewart, founded ufion
drcumsiances that have caet tip since the
murder happened: and I do declare, that it
was not from any conviction of his being guilty
of that crime I sent him money to carry him
oiTthe country ; but out of charity and friend-
ship J had for him, not only as a relation, hut
likewise w a pupil left to my charge by his
lather ; and as a person who kept close by my
brother in his greatest distress, when lurking,
before he got off the country ; and that I knew
he was a deserter, so durst not stand a precog-
nition. I also declare, it was without my
Icnowledge he carried any part of my cloth^
with htm, from my house, upon the Tuesday
before the murder. Nor did I know where he
was, or where he had gone to from that time,
until Donald Stewart, nephew to Ballachelish,
came to me Friday after that unlucky action
happened, and told Allan Breck was at Koalis-
naooan, and hegjged I might send him some
money to help him off the country, as he durst
not appear publicly, fbr fear of being secured
for the above reason of his being a deserter ;
and the said Donald Stewart toM me, that
Allan Breck assured him he had no hand in
the murder.
I likewise declare, tliough it is set forth in
my indictment that Allan Breck frequented my
house and company most of any place since he
came to the country in March last, that 1 did
not see him but thrice from his commg till he
went away from the country. The first time
was, two nights before I went to Edinburgh
in the beginning of April last. The next or
tecond time was about eight days afWr my
return from Edinburgh, which was about the
last days of April, as I best remember, when
he stayed but one night that I was at home.
The third and last time was upon the Monday
before Glenure*s murder, that he came to my
bouse about one of the clock after noon, and
Stayed that night ; and the next morning I went
from home, whiob was Tuesday, before he was
out of bed: nor did I see him that day, or
tince. Nor can I remember Glenure's name
was spoke of in his company either of the two
last times, unless it was he that told me
Glenure was gone forLochaber upon the Mon-
day ; as to wnich I cannot be positive ; but I
am very sure there was no word of destroy-
ing him in any way spoke of. The first time
he must have heard me talk of Glenure, as
I told him I was going to give in a memorial
tor the tenants to the barons of exchequer.
It is also set forth in my indictment, that it
was of my own accord, and not at the desire
of the tenants, I went to make application for
them in law. I do declare it was their desire
that all lawful ways should be taken to keep
them in possession ; and do assure myself ibat
nothing obliged them to lefuse that, but fear
and ignorance ; belief ing, that if they ihoold
own it, they would be made priseners ; as all
the poor people were put in such a terror by a
military force kept in different parts of the
country, that they, I mean the poor country-
people, would say whatever they thought
pleased my prosecutors best.
1 declare what John Dow Breck MacooH,
bouman in Koalisnacean, deponed in regard to
my coming to Glenure's window, was ialso ;
and that at the time he condescended on I
should have said so, being two years ago, I
was in very good friendship with GleoniOi
which his letters to me about that time testify.
Ah to the story John More Maocoll, Dougal
Maocoll, and John Beg Alaccoll, my servanli
told, they beard me say in my brew-boose^
that if Glenure did live five years, he would be
laird of Appin ; and that I saw people in Appfai
that would not allow Glenure to go on at such
a rate ; this I do not remember. Bat this I
can safely say, tliat John Beg Maccoll came
into the gaol at Inverary to see me, next day
after my sentence was passed, crying and
tearing as if be wa^ half- mad, and told me,
that the night Dougal Maccoll and he bimodf
were on their way to Inverary, at the strath ef
Appin, Ewan Roy Maccoll, poriioner of Glas^
drim, and the said John More Maccoll brought
two bottles of aquavitse into the bam where
they were confined, and wrougrht upon theni
to make up that story; and made them.twliefe
that it could not hurt me, and would gain them
friendship at Barcaldiue's hand. I truly be-
lieve, though it were truth, that it coold net
hurt any other person, though any thing was
proof enough against a man so ill looked upon
aa I seemed to be.
Alexander Stewart, packman, deponed wt^
Teral falshoods ; partieulariy in regard of the
five guineas he aaid I desire<l him to tell Wil*
Uam Stewart mercliaut in Mary burgh, to give
John Dow Breck credit in, for Allan Brtck's
use; and his saying I desired him to get only
4/. sterling from William Stewart, fur paying
milk-cows bought fbr his use at Ardshiel ;
whereas he was only desired to get 8/. sterling
fbr paying these cows, as they in truth were
bought for William Stewart's use.
I declare the reason why I did not challenge
them at the bar was,, that my lawyers desired
me, though 1 heard a witness swear falsely,
not to sfteak, otherwise I should be worse
looked u|>on : so that I hope the uubiassed will
believe that my silence did not proceed from
fear, as alledged by my enenues ; but in obe*
dieuce to the advice given me by my counsel,
which I waa determined to follow whatevor
should happen.
That tliere were plenty of bribes or rewards
offered to severals, I am well assured. Perti*
colariy, Donald Ranken, herd to Ballachelisfa,
a young hoy, was offered eii^hteen hundred
merks ; which are his own words: but he WM
kept close prisoner at Inverary, so that nooo of
my friends had access to put any questions' to
him. John Maccombich, lata mdler in IM
of Ardahkli waa ofiend his fonttcr poo*
fno^ Murder*
\ ^CIIm fbillf fur lelttflg nny thing vroulil
r ibtir liir«. Duncan Muceombich and
iUcooll« both III L4i{^naha, were of-
Ifcml u ifiucli meftl ai thrjr pleased to cnH for
aiPtfl-Wiltittiii, if th<?y woulil make any ilis-
€t>frie4. 1 tiow letive itie world to jndf^e,
utatliBiice II inaii Iih<I fur his liCt*, whtn sucb
Iwibaf wre oflTeird to p*ior, ii»uoraHt country*
Kf mt wtiAt assurance can any man have
iH bnlies prpvaiiej with some of Iho'fc
vliMmafceuaibP
Ailir 1I10 miciHnmon harilhhi|>s put upon me
Mrfer mj eaufioemeut, thi^y were many ; »uch
at, banif Imkem into custody without any writ-
Its w«irstil^ iiririn ilir i6th day of May last;
^agfwti thr*»ui: M Fot t-\Vil)iam, where 1
ins fc<|i€ ctir«^ , - notanowed to see any
a^mj CnEn4i« or any that couhl give mcconn*
ael, tfiiitk aluHil the 20tb of June, there came a
UtlvrCrwni Mr. IVilhaiit HiIrou, directed to my
wlfk, villi liir act of parliament dischart^ing
9§mm i■^praaaalent louger than eight days;
»ll^, wfcca th^wn to colonel Craw Turd, who
tlUi osnttfttiiletl the Kirt and troops, he al-
Jbired my wife and sotue others to see me:
^WMiU ftnt allow snch nsi 1 thought could
wmi nse to rne to come near me ; parli-
If. w,...^.., ....^-v^f^rof Ballachelish»
f cait '■ vices to me, would
latbtf ad,. '.. , I . . . -'I Charles Stewart
r, nr H ilham 8tettart merchant in ililary*
gt*l any admitiauce. In t»hort, any
«lio mmH Im iupiK>«<i'd to be of auy (ierrice to
tm is Hiakio^ my dt-fvnceii, were not perniilted
IBM la na. 1 do not impute this usage to
oIhkI Crawfurd, for whom 1 retain a very
0«ai rf^r**^* ^0^ ^^^ *1^*1 "^' ^'^"^ humanity^
Ll \t9 tm€ gut a very bad im(>re«isioti of Tt'ie
b . ed prosecutors. And when
fv Fort- William some time in
Iwi^^tTiniiii; ot July, »he new governor would
i^iaD9 to cQtue aesr me, luru^l tny wife
ttlOiinMil the fort, and dist hartred her to stay
■ Miiybvirgb. And in that close situation
ii^flaftf itotil my indictment came to band
ll«ttdie latter end of August ; su had no way
ilBiAbi ii|i my defences; nor dur^t auy of my
thcDds in ibc country offer to do for me,
sllisrwbA would he laiil up prisouers ; and
^tm vlio 1 expected liad inoRt to say for my
Aial|HUiOtt« were taken prisuneni, and kept
dtot lilt my that, to had not access to put any
fMttiaiM III ibom,* by wliich they were not
nady liiiiiake iheir sn«vi«rH when called at the
lir» 1 am far fiom vhar^jiog the governor
wkk Ibii bard uia^^c, who appears to he a
but bud his orders so to
A. a 1752.
[258
mktu
Whan cny trial cams on, I found il was nol
laljf Glamuv'* n>ni,i^.r | {^m\ to answer for, of
vIkIi 1 ibar \- ron^cience could easily
civ«r tzie, but - in d follies of my fore-
T«ra charged agsiu»t ma* such as the
aiUnittatiee to the
js fsfufcd/*— See
ttira
reKetlion 10 1715, in 17 19^ and 1745 ; bo could
not be allowed the character of an honest man:
not wit hidtan ding that I firmly belieTe, tberar]
was none present but who wai either himself,
or came ol people tliat were concerned in re- '
bellion some time or other, God forbid they j
should be all called villains upon that account^
as the greatest sinner, upon bis repenting, may
turn saiat>
I was a schoolboy in the year 1715, and was
but little more in the year 1719 ; and if I hsd |
the misfortune to be concerned in the year '
1745, I was indemnified; and have done no*
thing since to incur the goveroment's dbplea-
sure, that I am cooscioui^ of.
Another surprising charge against a man ill i
a Christian oouutry came in against me; which ^
was, that I was a common parent to fatberlees^
children^ and took care of widows in the coun-
try, which gained uie great influence over tho t
people, by which they were much led by me ;
or ^ome words to that purpose* I hope soon
to appear before a judge who will reward cha-
rity and benevolence in a diOerent way : and I
only regret how little service was in my power
to do, not only to the fatherless and widows, ,
hut to all maiiKind in £;eneral ; as 1 thank God
I would make ait the race of Adam happy if I i
could.
Another charge, aud a heavv <)ne, was, thftt
when subfactor to Glenure \ exacteil nior« |
rents of the tenants than was paid to the ex-
chequer, and which superplus rents 1 wrong*
ously applied, eiiher to my own use, or to tb# j
behoof of my brother Ardshiel's children.
I own 1 did get some acknowtc^lgments from '
some of the tenants, with the knowledge and
consent of the factor G tenure ; and do declare^ i
that ] was as assiduous as in my power, in
acting for the benetit of said children, and that '
1 did account to their behouf for all 1 could !
make of these lands, over and above the renl ]
paid to the factor : and thought it no crime s(» |
to do ; but to the contrary, thought it my duty,
to which 1 was bound by the tii.8, not only of J
nature, hut also of gratitude, being the dis*
tressed of&pring of a very afiV ctiuuate, loving |
brother, to wliom 1 was under many obtiga* [
Lions; and whose niialortunes (lam well as* |
sured) proceeded from a conviction of his doings I
his duty, ivhich may be conarued by some td <
be owing to the prejudice of his education. i
1 do declare, that 1 made no confession of 1
the crime alleged against me* at Invirary, or .
elsewhere ; and that i had it not to make. I
Nor can I remember, that any then^ asked mft J
Ihequestiou, excepting IV] r, AlcTitander Camp* ^
bell minister ; w ho, 1 am persuaded, could not <
be capable of being author of that fa]i« calum-
ny, which must have been raised by some ma-
licious persons. May God forgive ihem ! ft '
is very true, that ) told Air. Campbell ] had no I
personal love for Glenure, and iliat 1 was sorry
how few in his neighbourhood bad. Eut 1 1
hop^' no man ivould construct that as if J hadij
an intetition to muider him*
1 aUo told biiD« Uiat 1 had (he charity to bt>
S5U] 25 GEORGE II.
lie^e, that the bulk of the jury (lioiigbt 1 had
some forcknowleflge of the murder. Yet I
ttill think, and not without some reason, that
they ^ve themselTes too little tiaie to coniider
the proofs of either side, but gpave in their ver-
dict upon the prepossessed notion of guilt.
What must convince all welt-thinking people
of their being so pi*epossesscd, is their stopping
one of my lawyers twice in his speech to them
after the witnesses were examined. Mr. Gamp-
bell of South- hall, if I noticed right, was the
first that interrupted my lawyer. There was
tome other who also spoke, and who 1 did not
know.* I am told this is not often practised
in Christian countries; but there are many
ways taken upon some emergencies for an-
swering a turn ; and it appears I must have
been made a sacrifice, whoever was guilty.
As to what Alexander Campbell in Tayna-
loib deponed, That I did not know what I
should nelp any of his name to, if it was not to
the gallows ; I' do remember part of what
passed, lbou£;h my memory is not quite so
eoud as Mr. Campbeirs, or Colin Maclaren*s :
nut this far I can safely say, npon the word of
a Christian going into eternity, that I had no
other intention in what I said, than a joke;
and if I bad any grudc:e at himself for being
Campbell,' 1 was undtT no necessity to go into
his house, as there was another public bouse
within a gun-shot of his door.
As to what Ewan Murray and Colin Mac-
laren deponed, in r<^gard to my telling them,
that [ had given a challenge to Gienure ; I own
I was wrong in telling them that story, as it
Was a thing they had no concern in.
And as to what Colin Maclaren deponed I
should have said upon the road, after partings
with Ewan Murray ; 1 solemnly declare I dio
not remember one word that passed, being
much the worse of liquor, as he himself owned
apon oath.
I do declare, that I frankly forgive all these
evidences and jury, as freely as 1 want for-
giveness of my sins; and do from my heart
pray, that God may pardon them, and bring
them to a timeous repentance ; and that they
may not he charged with my innocent blood,
as 'i never intended any of them the least
harm.
My dearest friends and relations ; I earnestly
recommend and intreatyou, for God's sake,
that you bear no grudge, hatred, or malice, to
those people, both evidence and jury, who have
been the means of this my fatal end. Rather
pity them, and pray for them, as they have
my blood to answer 'for. And though you hear j
my prosecutors load my character with the
greatest calumny, bear it patiently, and satisfy
yourselves with your own conviction of my in-
nocence. And may this my hard fate put an
end to all discords among you, and may you
all be unite«t by brotherly love and charity.
Trial of James Stewart.
[960
* ** Two of the jury did speak, when the pan-
nel's lawyer was summing up the proof, which
disconcerted him." See Su^lement, p. 61.
And may the great God pnrfeet yoa ail, aid
guide you in the ways of peace and coocord,
dnd grant us a joyful meeting at the grett diay
of judgment.
1 remember Mr. Alexander Campbell
minister at Inverary, for whom 1 have a grett
value for his kind and good advices, told m«,
that the fear of discovering any of mr friendb
might be a temptation to me from making any
confession of my knowledge of that murder.
Therefore, to do my friends justice, so far m
I know, I do declare, that none of my friends,
to my knowledge, ever did plot or concert tbtft
murder ; and I am persuadeil they never eos^
ployed any person to accomplish that cowardly
action ; and I firmly believe, there is none of
my friends who might have a quarrel with thtft
gentleman, but had the honour and resolutioft
to offer him a fairer chance for his life, than to
shoot him privately from a bush.
Mr. Brown of Colston, Mr. Miller, Mr.
Stewart younger of Htewarthall, and Mr.
Mackintosh, were my counsel, and Mr. Stewart
of Edinglassie my agent. I do declare, that I
em fully satisfied they did me justice; and
that no part of my misfortune was owing to
their neglect, or want of abilities. And as
they are men of known honour, I hope tbey
will do justice to my behaviour during the
trial.
I c[ive it as my real opinion, that if Allat^
Breck Stewart was the murderer of Glenare,
that he consulted none of his friends aboot it.
I conclude with my solemn declaration, tluik
I tamely submit to this my lot, and severe sen-
tence ; aud that I freely resign my life to the
will of God, that gave me my first breath ;
and do firmly believe, that the almighty God,
who can do nothing without a good design,
brought this cast of providence in my way for
my spiritual good.
I die an unworthy member of the episoopal
chuiTh of Scotland', as established before the
Revolution, in full charity with all mortals;
sincerely praying Go<l may bless all my friends
and relations, benefactors and well-wishers;
particularly my poor wife and children, who
in a special mauner I recommend to his ditine
care and protection ; and may the same God
pardon and forgive all that ever did or wished
me evil, as I do from my hipart forgive them.
I die in full hopes of mercy ; not through any
merit in myself, as I freely own I merit no
good at the hand of my offeniled God ; but
my hope is through the b'looil, merits, aud me-
diation of the ever blessed Jesus, my Redeemer
and glorious Advocate, to whom I recommend
my spirit. Come, Lord Jesut>, come quickly.
James Stewart.
Mr. Coupar, minister, showed me sooM
queries a few days a^o, which ho was desired
to put to me. They arc all answered already
in my speech, excepiiug two ; which are»
Whether I knew Allan Breck's route from Bnl-
lachelish to Koalisnacoan, and from thence to
Rannoch, before the murder happened P An-
swer, I declare before God, 1 dia not. Whe*
161]
Trial ofM. Sfuires and S. Wills.
A. D. 1753.
[S62
Ihcr I iDlereeded with James Drammoad, in
the Tolboolb of Edinburgh, to persuade or en-
tioe his brother Robert, who was already out-
jawedl, to murder Gleuure, and that I would
gite him m good gun for that purpose, and
money for carrying him off the country, and
•that Ardshiel's interest would procure him a
t&mmimioo in France ? Answer, I declare be-
IsR God, there never passed such words be-
twiit James More Drummond and me, or any
to that effect. James Stewart.
** Notioe has already been taken of this James
Jfoie Drammond ; a fellow nursed in villany ;
wbe havinff been disappointed in the scheme,
lie owned, lie had laid for procuring* favour to
Umaelf, did, in order to supply the want of his
ma 9oe€ testimony against James Stewart at
loTcrary, send thither one in writing, declaring
ai above in the postscript of the dying speech.
This dcdaration had been perused, and was
tested npDQ by one at least of the lawyers of
Ihe edier lide, as mav be seen in the penult
wd feUoving lines or the 84th page of the
trial; mad was, it is said, banded about among
tbcjnijioen in court. It was acknowledged
afterwards by Macgregor himself, who had
the impudence to call at a gentleman's house,
November 17, the day after lie maile his escape
out of Edinburgh castle ; where being chal-
lenged for making such a declaratiun, he did
not pretend to deny it, but averred, that every
thing lie had said in it was true." Supplement
to the Trial of James Stewart.
The notice which had been already takcQ
of James More Drummond, alias Macgregor,
in p. 4 of the Supplement, is, that he was a
sou of the noted Rob Roy Macgregor, (as to
whom see Home's History of the Rebellion)
that his name had been inserted in the list
of witnesses against the prisoner James Stew-
art, when he, Drummond, was a prisoner in
the Tolbooth of Edinburgh, having been
only three weeks before (viz. Aug. 5,) found
guilty of a capital crime, and ordered by the
lords of justiciary to be kept in close prison till
sentence 'should be passed upon hint, that he
was not carried to Inverary by reason of an ex-
press prohibition from above, but was removed
soon thereafter from the city prison to that of
Edinburgh castle for the benefit of better air.
.530. The Trial of Mary Squires and Susannah Wells, Widows,
for an Assault and Felony committed on the Person of Eliza-
beth Canning, at the Sessions-House in the Old-Bailey, before
the Right Hon. Sir Crisp Gascoyne, knt. Lord Mayor of the
City of London, the Hon. Mr. Justice Wright, the Hon. Mr.
Justice Gundry, the Hon. Mr. Baron Adams, William More-
ton, esq. Recorder, and others his Majesty's Justices of Oyer
and Terminer of the City of London, and Justices of Gaol-
Delivery of Newgate, holden f<Jr the said City and County of
Middlesex, on Wednesday the 2 1st of February, and continued
till Monday the 26th: 25 George H. a. d. 1753.*
Mary squires, widow, and Susannah
Wdlt, were ioilicted ; the first, for that 8he, od
Ihc 8d of January, ib the dwelling-house of
* The atory of Elizabeth Canning excited
a moat lifely and extensive interest. Her ve-
ocity waa aiaintaioed and denied with the ut-
iMMt vcbemenco of opposition. It occasioned
duly litigations in the news-papers, and other
fariodacal nrinta, and gave rise to numerous
Uparate poblicaiions, of various sorts and di-
Mfnsiang. The eager siinplicily with which
Ac partizans of the girl (like the foolish con-
wltera of a conjuror) ha<l by their questions
^Hfgislnd to her materials for her answers, is
wdl exhibited by Mr. Ramsay the painter, in
m mmj which he published under tlie title of
M Ladw lioMi « Ckigy man to a Nobleman,
Susannah Wells, widow, on Elizabeth Cannings
spinster, did make an assuult, puttinji^ her the
said Elizabeth Canning in corporal fear and
danger of her life, and one pair of stays, value
10s., the property of the said Elizabeth, fium
her person, in the dwelling house, did steal,
take, and carry away. And
The latter, Vor that she, well knowing hrr
the suid Nary Squires to have done and com-
mitted the felony aforesaid on the said '2d of
Jajiuary, her the said Mary did then and there
feloniously receive, harboiir, comfort, conceal,
and maintain, agaiuKt his majesty'^ peace, aiid
against the form of the statute.
Elizabeth Canning sworn.
Elizabeth Canning, I had been to Sali-Petra
Bank to see an uncle and annt ; his name is
S63j
25 GEORGE 11.
Trial ofM. Squires and S. WellSf
[204
Thomas Collej. I set out from home about
eleFen in llie forenoon, and stayed there till
about nine at night, on the Ist of January ;
then my uncle and aunt came with me as far as
Aldgate, where we parted ; I was then alone,
8o came down Houndsdiich, and OFer Moor-
ilelds by Bedlam wall; there two lusty men,
both in i^reat-coats, laid hold of me, one on each
aide ; they said nothing to me at first, but took
half a guinea in a little box oat of my pocket,
and Zu that were loose.
Q. Which man took that?— Canning. The
man on mv right hand. Thev took my gown,
apron, and hat, and folded them up, and put
them into a great-coat pocket. 1 screamed
out ; then the man that took my gown put a
handkerchief, or some such thinjjf, to my month.
Were there any persons walking near you at
that time? — I saw nobody. They then tied
my hands behind me ; aAer which one of them
gave roe a blow on the temple, ami said, Damn
Tou, ^ou bitch, we'll do for you by and bye.
having been subject to convulsion -fits these
four years, this blow stunned me, and threw
me directly into a fit.
Are these fits attended with a struggling ? —
I don't know that.
What happened afterwards ?— The first thing
that I remember after this was, 1 found myself
by a large road, where was water, with the
two men that robbed me.
Had you any discoufse with them ?— I had
none ; they took me to the prisoner Wells's
house.
About what timd do you think it might be F
—As near as I can think, it was about four
o'clock in the morning. I had recovered from
my fit about half an huur before I came to the
house. They lugged me along, and said, You
bitch, why don't you walk faster? One had
hold on my right arro,aud the other on the left,
and so pulled me alontr.
Can you form any judgment in what manner
you was conveyed to the place before you re-
covered of your fit ? — \ think they dragged me
along hy my petticoats, they beinc^ so dirty.
When you came to ^^'ells's house, was it
day-light? — No, it was not; I think it was
dajvlight in about three hours, or better, after I
WM there ; which i:$ the reason 1 believe 1 was
carried in about four o'clock.
When you was carried in, what did you see
there? — 1 saw the gypsey-woman inquires,
who was sitting in a chair, and two young
women in the same room ; Virtue Hall (the
evidence) was one ; they were standing against
a dresser.
Did you see the prisoner (Wells) there? —
No, I did not. As soon as I was brought in,
Mary Squires took me by the hand, and asked
me if 1 chose to go thf*ir way, saying, if I did,
I should have fine clothes. I said, No.
Did she explain to you what she meant
^y fi^oing their way?— )fo. Sir. Then she
went and took a knift out of a drever-drawer,
and cut the lace of my ttoy t, and took them
from me.
Had yoo, at thst time, any apprehensions of
danger ? — I thought she was goiujpf to cut my
throat, when I saw her take the knife.
Did you see the prisoner (Wells) at that
time? — No, I did not.
Was any thing else taken from yoo ?— There
was not then ; but Squires looked at my pettH
coat, and said, Here, vou bitch, you may keep
that, or I'll give you that, it is not worth mucb^
and gave me a slap on the face.
Had she the petticoat in her hand ?— No, it
was on me. After that, she pushed me up
stairs from out of the kitchen, where we were.
Describe the kitchen ?— The kitchen was at
the right hand going in at the door, and the
stairs are near the fire.
How many steps to them ?— There are ^Nir
or five of them.
What did they call the name of the place
where they put you in ? — ^They cxdl it the hay^
loft. The room-door was shot as soon as I
was put up.
Was it fastened?— I don't know that; it
was at the bottom of the stairs in the kitchen.
AfWr she shut the door, she said. If ever die
heard me stir or move, or any such thiof,
she'd cut my throat.
Did you see any thing brought up to eater
drink ? — I saw nothing brought up. When
day -light appeared, I couM see about the room $
there was a fire-place and a grate in it, no bed
nor bedstead, nothing but hay to lie upon ;
there was a black pitcher not quite full of water,
and about twenty-four pieces of bread. [A pitcher
produced in court.] This isthepitclier, wbicb
was full to near the neck.
How much in quantity do you think these
twenty-four pieces of bread might he? — I be*
lieve about a quartern loaf.
Had you nothing else to subsist on ? — I bad
in my pocket a penny mince-pye, which I
bought that day to carry home to my brother.
How long did you continue in that room ?-«
A month by the weeks, all but a few hours.
What do you mean by a month by the weeks?
—I mean a four-weeks month.
Did anjr body come to you in the room dur-
ing that time ?— No, Sir, nobody at all. Ola
the Wednesday before I came away, I saw
someboily look through the crack of the door,
but don't know who it was.
Did you, during the time you was in thie
confinement, make any attempts to come down
stairs, or make your escape ? — No, Sir, 1 did
not till the time I got out.
Had you anv thing to subsist on during the
time, besides the pieces of bread, penny -pye,
and pitcher of water ? — No, I had not.
At what time did you g^t out ? — I got enl
about four o'clock in the afternoon on a Men-
day, after I had beeu qonfined there four weeki^
all but a few hours.
How did you get out? — I broke down a
board that was nailed up at the inside of a win*
dow, and got out there.
How high was the window from the groond F
— ^deecribeditbythehcightof aplaeeiv
for an Auatdl and Felony.
A. D. 1759.
[866
liSettionK-iioii^r, which was aboiil flight or
ffinri ill J 4 1 \ Fiftl I ip»t my head oat, and
1 bj the \fall, autl tfot my body
hat 1 fnrned [iiyaell rotinil, and
ifito a Utile ourrow |ilace by 4h lane,
fr-H brliiud i«,
• *e jufnfi hurt yoa?— No, il was
;tii thm ?— It was.
you do for clolhing-? — I took tn
' ' J Hiti and n huodkerchiert that
d'tf and hv in a grate io the
^i Eiriiijt^ed in court.] 1 made my
m% gelting' out , the handkerchief 1
- Oij^ hemil instead uf a cap, it ivas ?ery
I jroo lk#e any hody when you jumped out
Um wtii4ow f — No, nobody at atl ; then I
i Oft Ibe liack-tide the house up a lane, and
\ ft tittle brook, ami over two tields, as I
1 dill not take notice how many
t^^alh-way brought nie by the
i*«dr. Ttirn I went by the road straight
If^ knew the way ? — I did not.
- mil no Cftll at any house ? — No» I did not.
Ililni» Im o'clock I u»i na 1 came oirer iVIoor-
' uit a quarter after to my
nnaribury,
y b<»dy with your rols'
— No, ! did not.
.^^ wifli Hrst? — 1 met with
At ; then I saw my mother
J. 8he went intu a til di*
iBotker
tb top:
ttiA lllr
lirifflili^l
11^ '
oil £r^ipe io aecount to any body how
n treated ?— Yes, I did to Mrt.
who catne to see me, that I had
bread and water. Site waa lO
the ctiuUi not uvk me any questiona
Mr. Wiutlfbnry came in, with
i senrant hd'ore I went to live with
; he took me by my hand, and asked
1 had been f 1 said^ Sir, in Hert>
' ir| ; he aftid, Bet, bow do you know
J. because I saw my mistresses
^u by, which she used to go into
into Hertf(inl«hire, that was Mra.
I I kuew the coach, because J
•0 carry ibiogi to it, and fetch them back
li jton isked any questions about the room
J IMl Big^bt, and wliat v'fU had to subsist
I— Yen, Uiere were many people came in,
1 I loM thi?m \ hnd a jutf which was not
! fo i ! 'V axked me how much ?
imi 1 •- Hiter than a g^allon of it:
Ibty «a^ ' j^»t out Y HUd I said,
1 livkr tind had toni my
WriiiKcitmg out, ivuirii bied all the way com*
Wliai iliingi did you observe io this hay-
Mi?— Tlicf« was a barrel, a saddle, a basun,
smI b ibbicco-maQy*
Wb«t da you mean by a tobftcco-oiould Y — 1
AMO %mek a tbioK that they do up peiioy-
»flnkiifftobiic€owith«
[Cros8^xamination<]
How lonf^ niii^ht these two men continut]
with you in Moortit^lds? — About half an hour.
Did' any body pass by at the lime f — Nohodjf
at all.
Was this boXf that contained yonr huirgfuinea|
taken out of your pocket?— Yes, 8ir, it was. '
Had you any thing else in your pocket ? — I
had a pocket-handkerchief with a pye in it,
which 1 did not lose.
Was there any light near this place where !
you was ilr^^t attacked ? — There was a lamp.
Jlafe you recollected how lonff you lay in
this fit betore yoo CAme to yourself?—! C4inool
be sure, but it was about lislf an hour before 1
arrived in Wells^s bouse.
During the time of your first being attacked, ,
whether you had any degree of sense at all F— <
Not till half an hour before I came I o that house.
Had you sense enough of any sort lo know
by what means you was conducted ? — I think
they dragi^ed me along: by my petticoats^ tlvey
were made so dirty ; but J was not sensible.
Was you in any surprise when she took yoor ]
stays f — 1 wasiu a great surprise, and atrofii i
tremble.
Then how can 3'ou tell who was there at the
time? — ^The terror made me look about me ta
see what company was there.
How long did the two men stay in the roomf j
—They btayeU no longer than till they saw my
stays cut off, then they went away, before I
was put up in the loth
Did not you make an attempt to get out be*
fore tliat Monday you talk on ? — I did not
How came you not to make an ntlcippt be»4
fore? — Because I thought they might let mo^
out ; it ne^er came into my head till thftl
morning.
Where was you sitting, when you saw some-
body peep through the crack of the doorf^ — I
was walking along the room.
How wide was this crack ? — It was ibout 1 ^
quarter of an inch wide.
Did not you, in the whole twenty-seven days,
perceive where you was? — t did in about %
week after, by seeing the coach go by, ^^l
Was not you extreme weak ?--l was pretlj
weak. "f*
Was you ever that way before ? — Nik" "^l
never was. . r
Did not you pass maov houses tn your vray |
home ? — I did, and asked my way of people on
the road.
How came you, being in that deplorable
csoodition, not to go into some house, and relate
the hardships vou had ffone through ? — I I
thnuj^ht^ if I did» may be Imight meet some*
body lielonging to that bonse.
Did you see the prisoner (Wells) while yon j
were in thatconlinement? — I never mw her in (
the house stall till I went down afterwardtt
Had you any of your fits while in that room t 1
-*I had not, but waa liuotiiig and sick. I
Squire*. 1 ne?er saw that witness ia my life»
time tiU Uii# day three weeki.
S67j
25 GEORGE II.
Trial ofM. Squires and & WdU^
[268
Uovr was the prisoner (Squires) dressed,
wheo you was carried in ? — She was sitting in
her (To^Df with a handkerchief about ber head.
Did joa never, during all the time, try if Ibe
4oMr was fastened or not? — 1 did once push
•gaiuRt it with my hand, and found it fast
Had you used to hear any body in the
kitchen F — 1 beard people sometimes blowing
the ftre, and pttsing in and oat. Tliere was
another room in ivhioh I beard a noise at
nights, but the house was very quiet in the
day-time.
Did you eat all your bread ? — I eat it all on
4he Friday before I got out ; it was quite bard,
and I used to soak it m the water.
When did you drink all your water P — I
drank all that about half an hour before I got
out of the room.
(Upon being asked where she did her ooca-
■aions while in the room, she answered, she never
had had any stool while in eou6nement, she
bad only made water.)
Virtue Rail examined.
Hall. I know the two prisoners at the bar ;
Wells lived at Enfield -Wash ; I went and
lived there as a lodger. Mary Squires lived
in the boose, and had been thereabout seven or
eight weeks.
Q, How long before E. Canning was brou^
in ?~^HalL Abont a fortnight before, which
was on tbe 9d of January, about four in the
morning ; .she Was brought in there h}f two
men ; John Squires was one of them, he is son
to Mar^ Squires ; the other man I don't know
any thing of; 1 never saw him before.
How was she dressed when brought in ?—
She had no gown on, or bat or apron.
Who was in the house at the time? — There
was I and Mary Squires, the prisoner and her
daughter. The gypseyman said, Mother, I
have brought you a ^rl, do you take her :
then she asked £. Canning, whether she would
go her way ?
What dfid she mean by that f— She meant
Ibr her to turn whore ; but she would not.
-Do you mention this by way of explanation,
or as words that she said r — As words that she
•aid ; then Mary Squires took a knife out of a
drt»iRer-drawer in the kitchen, and ripped the
lace of her stays, and pnlleil them off, and hung
them on the back of a chair in the kitchen, and
pushed her up into the room, and said. Damn
70U, go up there then, if you please; then the
man that came in with the gypsey's son, took
the cap off E. Canningf's head, and went out a
doors with it ; the gypsey-man John Squires
took the stoys off tbe chair, and went out with
them.
Where was E. Canning, when the two men
took away tbe things ?— She was then up in
the room.
Had you ever been in that room?— I had,
before she was brought there, several times.
What was the uame they call it by ?— They
call it by the name of tbe workshop ; there
wai a great deal of hay in it^ they only p«t
lumber in it : there was a great many pieces
of wood, a tobacco -mould, and this black jug;
about three hours after the young woman was
put up. Nary Squires filled the jug with water,
and carried it up.
How do you know it was three hours af\eip
—Then it began to be lightish.
Did you hear auy talk between them aflcr
she I was iu the room? — They took care I
should know but little.
Has Susannah Wells a huslraod? — No, sho
has not : when I went out of the kitchen, I
went into the parlour ; Wells said. Virtue tid^
the gipsey<man came in and told me, th«t his
mother bad cut the stays off the young woman's
back, and he had got them ; and she bid no
not to say any thing to make a clack of it|
fearing it should be known.
How long was you in that house ? — I wis
there a quarter of a year in all, if not more ; I
was there the whole time E. Canning wif
there ; but I never saw her once after she wat
put up into that mom. I was the first that
missed her ; I asked the gypsey-woman onoi^
whether that girl was gone ? She anaweied»
What is that to you, you have no busineH with
it : but I durst not go to see if she was gone.;
if I had, very likely they would have served
me so.
Did you ever see the other man after that
night? — No, I never did.
Who lodged in the house at tbe time bcsidci ?
—There was Fortune Natus did.
Did Mary Squires continue in the bouse hwf
after this ? — She did, till we were all taken ujb
which was, I think, on tbe l*hursday after tbe
young woman was gone.
What was you in that bouse ? — I went tboe
as a lodger ; but 1 was forced to do as they
would have me.
Mary Squires. What day was it that tbs
young woDuin was robbed ?
Court. She says on the morning of the Sad
of January.
M. Squires. I return thanks for telling mc^
for I am as innocent as the child unborn.
Wells. How long were these people (mean-
ing the gypsies) at my house in all, from fiial
to last ?
Hall. They were there six or seven weeks
in alt ; they had been there about a fortnight
before the young woman was brought in.
Did you ever see this cap or bed-gown b^
fore ? — Not to my knowledge.
Thomas ColUy sworn.
Colley. I am E. Canning'8 uncle ; I live at
Sah-Petre Bank ; on the New -year's day sIm
dined and supped at my house, aud went away
about niiip in the evening, as near as I cas
guess ; I and my wife went along with her to
Uoundsditch, almost to the blue-Ball ; tbcfO
we parted with her, about a quarter or very near
half an hour afier nine o'clock.
How was she cloth^?-^he bad agow%
bat, and white apron on.
2
Jbr an AstauU and FeUmy*
SUmbeth Cunning gw^rn.
A* D. 1753.
[270
Canning, E, Canning that Ims gifen her
Viirfrnr*' h my ilaoghter ; after ebe was miss-
1 I Nei»-year*3 day, I adv^rtiiieil her
I ^ L*s ; »he cmme biick on the day before
• ^mi^ i^harlrs^s >I«riyvdom, about a quarter
leu u*cl<ickat nifi^fit ; she liad nothing but
bed-gown and a cap; 1 feiJ into a
tly ; my dau lighter is subject to tits ;
vrfi« ■ i;aiTet-cieling feU in U|Km her
-Mhicb first occasioiieil llieni ; and at
when any botly speaks hastily to lier, or
my "-uriH ize, she is »efy liable to fall in
«he Ua^Jiometimescoohiiued in one seven
;lil hours, sometimes three or lour; fche
seDsibie during the time she is in one,
va more than a ne^v-born babe ; when 1 came
to myself, my daughter was lalkinir to Mrs.
Wooilward aud Mr* Winilebury ; they asked
W where she had been ? she said on the Hert-
Ibrdtbire road, winch she knew by seeing a
going by ; she t*af e the same account
here. When site came into her warm
m waa fery sick, and ii»d no free pamage
her fbrsKKiI or urine, till she was sup*
plied with glv^ers, for se^'en days after she
ttmt hmne, but what fi-aslbrced by half a cup*
fm ft a time*
John WintUburtf sworn,
Wmlffbufy. I fa\T EH^stWth Canning the
ai<^bt she came home ; she appeared in a rery
m fondiliun, and bud this dirty bed-gown and
Cip OQ. Hearing she was come home, 1 went
taher mother^s house, and ftaid, Bet^ how do
lott do? She said, ! am very bad. Said I,
Where hatt; yim been? 8he said, I have been
lomcwbere on the HertfordsbiiT road, because
Ihtfe seeti the Hertfordt>hire coach go back<
Nrdt and forwards.
4. Hare yon heard the evidence she has
fi^B here in court .^ — WintUhury, I have;
ibffave the same account Uiat nijrht, but not
^wfe so fully that tii^ht, as she did before the
atiiiHf ahlermijn on the Wednesday after; hut
^larreea with whiit she has said here. 1 found
iNrin a great Uurry, so did not ask her many
fMoQS that night.
Jouph Adamton sworn.
iiam$on. 1 ^lave known Elizabeth Canning
i|youugerson»e years. I never saw her after
iktcame homci ^>1l t^^